Case: 13-153    Document: 18   Page: 1    Filed: 10/03/2013




          NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

         IN RE TOA TECHNOLOGIES, INC.,
                     Petitioner.
               ______________________

               Miscellaneous Docket No. 153
                 ______________________

    On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Texas in
No. 12-CV-0712, Judge J. Rodney Gilstrap.
                 ______________________

                     ON PETITION
                 ______________________

    Before DYK, MOORE, and TARANTO, Circuit Judges.
DYK, Circuit Judge.
                       ORDER
       TOA Technologies, Inc. (“TOA”) petitions for a writ
of mandamus directing the United States District Court
for the Eastern District of Texas to vacate its April 18,
2013 order denying petitioner’s motion to transfer venue,
and to direct the court to transfer the case to the United
States District Court for the Northern District of Ohio.
CSG Systems, Inc. (“CSG”) opposes. For the reasons that
follow, we grant the petition for a writ of mandamus and
direct the district court to transfer.
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2                         IN RE TOA TECHNOLOGIES, INC.




                       BACKGROUND
   CSG, a Delaware corporation, headquartered in Den-
ver, Colorado, brought this patent infringement suit
against TOA in the Eastern District of Texas. CSG’s
complaint asserts two related patents, both of which
disclose methods for assigning service requests to mobile
field technicians based on the skills of available techni-
cians and the time required to complete each service
request.
   TOA, a Delaware corporation headquartered in Beach-
wood, Ohio, moved to transfer venue to the Northern
District of Ohio pursuant to 28 USC § 1404(a). That
statute provides that a district court may transfer a case
“for the convenience of parties and witnesses, in the
interest of justice.” The parties stipulated that neither
has ever maintained an office or had any employees in the
Eastern District of Texas. TOA argued that the accused
product was invented and developed in Beachwood, Ohio,
the majority of TOA’s witnesses and documents reside in
Ohio, and there is a strong local interest in deciding this
matter in Ohio.
   CSG opposed the motion, contending that several TOA
employees live in Texas, and other relevant TOA person-
nel live outside of Ohio, including in the Ukraine, where
the technical design of the accused product is currently
performed. CSG further argued that the bulk of the
relevant TOA documents are stored electronically on
servers in Miami, Florida and can be accessed from any-
where via the cloud.
   Following an evidentiary hearing on the venue motion,
the district court concluded that TOA had not met its
burden of demonstrating that the Northern District of
Ohio was clearly more convenient than the Eastern
District of Texas, and denied the motion to transfer. With
regard to the sources of proof, the district court noted that
with the exception of certain notebooks maintained in
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 IN RE TOA TECHNOLOGIES, INC.                             3



hard copy “the vast majority of the Defendant’s documen-
tation is–stored electronically” and that this digital in-
formation is “effectively stored everywhere, including the
Eastern District of Texas[.]”
   Although “neither party is headquartered in the East-
ern District of Texas” and “TOA has 55 employees in its
Beachwood, Ohio office,” the court concluded that the
convenience of witnesses did not weigh in favor of trans-
fer. In doing so, the court noted that the defendants had
five employees who reside and work in the state of Texas
and the plaintiff had at least one employee with potential
relevant information who resided in San Antonio, Texas.
The court added that many of the technical programmers
who worked on the accused products likely reside in the
Ukraine.
   The court acknowledged that TOA had identified some
ex-chief financial officers of the company who could be
compelled to testify in the Northern District of Ohio.
However, because in the view of the court the defendants
had not established the relevance of their supposed
knowledge or that the evidence would not be duplicative,
the court found the compulsory process factor neutral.
    Finally, as to any local interest in the case, the court
acknowledged that TOA has many employees in the
Cleveland, Ohio area. Nonetheless, the court concluded
that this factor was neutral if not slightly against transfer
because “Beachwood is but a suburb and a part of the
larger Cleveland metropolitan area,” which in the view of
the court did not establish any localized interest. Addi-
tionally, the court explained that “[t]he accused product is
sold and used by customers all over the United States,
including the Eastern District of Texas.”
                        DISCUSSION
   Applying Fifth Circuit law in cases arising from district
courts in that circuit, this court has repeatedly held that
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4                         IN RE TOA TECHNOLOGIES, INC.




mandamus may be used to correct a patently erroneous
denial of transfer. See In re Microsoft Corp., 630 F.3d
1361 (Fed. Cir. 2010); In re Acer Am. Corp., 626 F.3d 1252
(Fed. Cir. 2010); In re Nintendo Co., Ltd., 589 F.3d 1194
(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. 2009); accord In re Volkswagen of Am., Inc., 545 F.3d
304 (5th Cir. 2008) (en banc).
   Section 1404(a) serves to “prevent the waste of time,
energy and money and to protect litigants, witnesses and
the public against unnecessary inconvenience and ex-
pense[.]” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964).
Consistent with that purpose, both this court and the
Fifth Circuit have made clear that “[a] motion to transfer
venue should be granted if ‘the movant demonstrates that
the transferee venue is ‘clearly more convenient[.]’” In re
Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (citing
Volkswagen, 545 F.3d at 315) (emphasis added); Ninten-
do, 589 F.3d at 1197 (same).
   There are a number of factors to consider in deciding a
motion to transfer, but only four that warrant attention
here. 1 Those factors are: (1) the relative ease of access to
sources of proof’; (2) the cost of attendance for willing
witnesses; (3) the availability of compulsory process to
secure the attendance of witnesses decided at home; and


    1  The remaining factors are: (1) all other practical
problems that make trial of a case easy, expeditious, and
inexpensive; (2) the administrative difficulties flowing
from court congestion; (3) the familiarity of the forum
with the law that will govern the case; and (4) the avoid-
ance of unnecessary problems of conflicts of interest or in
the application of foreign law. See Radmax, 720 F.3d at
288. The parties do not dispute any of these factors, and
we discern no error in the district court’s conclusion that
those considerations favored neither venue.
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 IN RE TOA TECHNOLOGIES, INC.                            5



(4) the local interest in having localized interests decided
at home. Radmax, 720 F.3d at 287-88.
   Turning first to the sources of proof, the district court
assigned substantial weight to the fact that “the vast
majority of the Defendant’s documentation is–stored
electronically” and that this digital information is “effec-
tively stored everywhere, including the Eastern District of
Texas[.]” However, this does not negate the significance
of having trial closer to where TOA’s physical documents
and employee notebooks are located. The critical inquiry
“is relative ease of access, not absolute ease of access.”
Radmax, 720 F.3d at 288. Since no party is headquar-
tered in the Eastern District of Texas, and the existence of
physical sources of proof in the Northern District of Ohio
makes that venue more convenient for trial, this factor
should have been weighed in favor of transfer.
   On the remaining factors, the district court similarly
failed to conduct its analysis in terms of relative conven-
ience. For instance, the district court did not weigh the
convenience of witnesses in favor of transfer even though
the parties stipulated to the fact that no witness was
identified as residing in the Eastern District of Texas, and
there was evidence that at least seven witnesses expect-
ing to participate at trial reside well within 100 miles of
the Northern District of Ohio. 2 The parties also stipulat-
ed to the fact that it could cost approximately twice as
much for CSG’s own witnesses to travel to the Eastern
District of Texas than it would to travel to the Northern
District of Ohio. While the district court viewed some of
the parties’ employees in the state of Texas as having
relevant information, the potential for inconvenience to



    2 Testimony reflects that TOA’s office is an approxi-
mate 25 minute drive to the Northern District of Ohio
courthouse.
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6                         IN RE TOA TECHNOLOGIES, INC.




witnesses still favors transfer, because none of those
witnesses resides within 100 miles of the Eastern District
of Texas and the majority of witnesses would find the
Northern District of Ohio less inconvenient and costly to
travel for trial. 3
   Moreover, because party witnesses and three former
chief financial officers of TOA were identified as residing
within 100 miles of the Northern District of Ohio, transfer
ensures that these individuals could be compelled to
appear for both deposition and trial. Fed. R. Civ. P.
45(c)(3)(A)(ii). The Eastern District of Texas, by contrast,
was not identified as being able to compel such testimony
from any of the prospective witnesses.
   Finally, the Northern District of Ohio has a local inter-
est in deciding this matter. TOA continues to be head-
quartered in Beachwood, Ohio, maintaining 55 employees,
including most of TOA’s top executives. Meanwhile, there
is no apparent connection between this case and the
Eastern District of Texas except for the fact that the
accused products are sold there.
   In Hoffmann-LaRoche, this court concluded that the
“the sale of an accused product offered nationwide does
not give rise to a substantial interest in any single venue.”
587 F.3d at 1338. We have accordingly held in cases



    3   TOA argues persuasively that none of the Texas
employees are likely to testify at trial, pointing out that
one of the employees had been employed for only three
months at the time of the transfer hearing. The court
additionally notes that in the unlikely event that any of
TOA’s programmers residing in the Ukraine are required
to testify, neither venue would be convenient for trial. See
In re Genentech, Inc., 566 F.3d 1338, 1344 (Fed. Cir. 2009)
(noting that witnesses from Europe would be required to
travel a significant distance no matter where they testify).
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 IN RE TOA TECHNOLOGIES, INC.                              7



where there is a significant connection between a particu-
lar venue and a suit that the sale of a product in the
plaintiff’s preferred forum should not negate this factor
being weighed in favor of transfer. Id.; Genentech, 566
F.3d at 1347. So too here, the district court’s conclusion
that “[t]he accused product is sold and used by customers
all over the United States, including the Eastern District
of Texas,” does not negate the significant interest in
trying this case in a venue in which the accused product
was designed.
   In sum, the vast majority of witnesses will find the
Northern District of Ohio a less costly and more conven-
ient forum to appear in for trial; the Northern District of
Ohio is also the only venue where any of the physical
evidence is located. Moreover, the Northern District of
Ohio is the only venue that has any local interest in the
matter given the local presence of TOA. Meanwhile, the
Eastern District of Texas has no connection to any wit-
nesses, source of proof, or interest in this case. It is clear
that no single factor weighs in favor of keeping this case
in the plaintiff’s chosen forum. Even measuring against
the high standard necessary to grant mandamus, under
these facts, TOA has established the right to a writ.
    Accordingly,
    IT IS ORDERED THAT:
    The petition for a writ of mandamus is granted. The
April 18, 2013 order denying transfer is vacated and the
district court is directed to transfer this action to the
Northern District of Ohio.


                                     FOR THE COURT

                                     /s/ Daniel E. O’Toole
                                         Daniel E. O’Toole
                                         Clerk
