In re Simpson Strong-Tie Company, ET AL., No. 11-M970 (Fed. Cir. Apr. 6, 2011)

PER CURIAM.

ORDER

The petitioners, Simpson Strong Tie Company and Simpson Manufacturing Co., Inc. (Simpson), Simpson's parts supplier, SFI of Tennessee, LLC (SFI), and Associ ated Truss & Lumber Co. (AT&L), a local retail hardware store accused of selling Simpson's accused product, all2 IN RE SIMPSON STRONG TIE 2 defendants in a patent infringement suit, seek a writ of mandamus directing the United States District Court for the Eastern District of Texas to sever the claims against AT&L and transfer the remainder of the case to the United States District Court for the Northern District of California. The plaintiff in the action, Ei-Land Corpora tion (Ei-Land), opposes. The petitioners reply.

In its order denying the petitioners' motion to trans fer, the district court acknowledged that the Northern California court's ability to subpoena witnesses favored transfer because several potential non-party witnesses reside within the Northern District of California or within 100 miles of that court. The court also concluded that the convenience of the witnesses slightly favored transfer because more potential witnesses had been identified within or closer to that district. The court noted, how ever, that there were witnesses who could more conven iently appear in the Eastern District of Texas, including potential witnesses at Simpson's McKinney branch lo cated within the district. In addition, the court stated that potential evidence was housed at Simpson's McKin ney branch.

With regard to the local interest factor, the court noted that the Eastern District of Texas appeared to have more of an interest in adjudicating the dispute because Simpson's McKinney branch generated substantial reve nue from sales of the accused product, employs approxi mately 180 people in McKinney, and "unlike the Eastern District of Texas, none of [Simpson's] four branches that produce or assemble the accused product are located in the Northern District of California." The court therefore concluded that the petitioners had not met their burden of demonstrating the Northern District of California was clearly more convenient than the Eastern District of3 3 IN RE SIMPSON STRONG TIE Texas for trial, and it denied the motion to sever and transfer.

Applying Fifth Circuit law in cases arising from dis trict courts in that circuit, this court has held that man damus 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., Ltd., 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.

The petitioners contend that Ei-Land named as de fendants a number of Texas-based retailers not subject to personal jurisdiction in California in an attempt to pre vent transfer to a far more convenient venue. This case, however, is not akin to the circumstances in In re Micro soft Corp., 630 F.3d 1361 (Fed. Cir. 2011) and prior cases in which we granted mandamus relief based upon the trial court's reliance on a party's attempts to frustrate the transfer laws. Here, all of the hardware store defendants except for AT&L have been dropped from the suit and the reasons for denying transfer were irrespective of AT&L's presence in Texas.

The petitioners' argument that this cause of action has no meaningful connection to the plaintiffs chosen forum was addressed and rejected by the district court in its transfer order. The court explained that Simpson conducts significant operations relevant to this case outside of its Northern California headquarters, including activities at its McKinney branch, and that potential4 IN RE SIMPSON STRONG TIE 4 witnesses and sources of proof are located within the Eastern District of Texas. We are not prepared to hold that those conclusions were plainly incorrect. In sum, the petitioners have failed to satisfy the demanding standard required to justify the issuance of a writ of mandamus. We therefore deny the petition.

Accordingly, IT Is ORDERED THAT: The petition for a writ of mandamus is denied.

FOR THE COURT

APR 06 2011

/s/ Jan Horbaly Date Jan Horbaly

Clerk

cc: James P. Martin, Esq.

John J. Edmonds, Esq. Alexandra C. Fennell, Esq. Clerk, United States District Court For The Eastern

District Of Texas s19

FILED

I.S. COURT OF APPEALS FO:l

THE FEDERAL CIRCUIT

APR 062011