Opinion
W-21-CV-00896-ADA
11-29-2022
ALMONDNET, INC. and INTENT IQ, LLC, Plaintiffs v. META PLATFORMS, INC. Defendant
ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER TO THE NORTHERN DISTRICT OF CALIFORNIA AND DENYING-IN-PART AND GRANTING-IN-PART PLAINTIFF'S MOTIONS TO STIKE
ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Meta Platforms, Inc.'s (“Meta's”) Motion to Transfer Venue to the Northern District of California, or Alternatively, to the Austin Division of the Western District of Texas. ECF No. 32. Plaintiffs AlmondNet, Inc. and Intent IQ, LLC (“AlmondNet”) oppose the motion. ECF No. 54. Meta filed a reply to further support its motion. ECF No. 58. AlmondNet has also filed a Motion to Strike the Declaration of Nicholas Wong, ECF No. 49, and a Motion to Strike the Declaration of Jennifer Allen or in the Alternative to Deem as Filed the Attached Proposed Sur-Reply, ECF No. 63. Meta responded to both motions to strike. ECF Nos. 51, 67. AlmondNet filed replies to support its motions to strike. ECF Nos. 56, 73. After careful consideration of the parties' briefs and the applicable law, the Court GRANTS Meta's motion to transfer venue to the Northern District of California. The Court further DENIES AlmondNet's motion to strike the declaration of Nicholas Wong. Lastly, the Court GRANTS-IN-PART and DENIES-IN-PART AlmondNet's motion to strike the declaration of Jennifer Allen or in the alternative to deem as filed the attached proposed sur-reply.
I. FACTUAL BACKGROUND
In its complaint, AlmondNet claims Meta infringed on U.S. Patent Nos. 7,822,639 (“'639 Patent”), 8,244,582 (“'582 Patent”), 8,244,586 (“'586 Patent”), 8,671,139 (“'139 Patent”), 8,677,398 (“'398 Patent”), and 9,830,615 (“'615 Patent”) (collectively, the “Asserted Patents”), which relate to internet-based advertising systems and methods. ECF No. 83 ¶ 1. AlmondNet, the owner of the Asserted Patents, is a corporation organized under the laws of the state of Delaware with a place of business in Long Island City, New York. Id. ¶ 2. Meta is a corporation organized under the laws of the state of Delaware. Id. ¶ 3. Meta's principal place of business is in Menlo Park, California. ECF No. 36 ¶ 2. Meta has offices within the Western District of Texas. ECF No. 83 at ¶ 3. According to AlmondNet, Meta makes, uses, offers for sale, sells, and imports certain infringing products and services, including Facebook Ads, Instagram Ads, Messenger Ads, and Facebook Audience Network. ECF No. 32 at 1. The Court will refer to these products collectively as the “Accused Products.”
In addition to this case, AlmondNet filed four other cases in this District alleging infringement of the Asserted Patents. AlmondNet, Inc. v. Roku, Inc., No. 6:21-cv-00876-ADA (W.D. Tex. Aug. 20, 2021); AlmondNet, Inc. v. Samsung Electronics Co., Ltd., No. 6:21-cv-00891-ADA (W.D. Tex. Aug. 26, 2021); AlmondNet, Inc. v. Microsoft Corp., No. 6:21-cv-00897-ADA (W.D. Tex. Aug. 27, 2021); AlmondNet, Inc. v. Amazon.com, Inc., No. 6:21-cv-00898-ADA (W.D. Tex. Aug. 27, 2021).
After responding to AlmondNet's complaint, Meta filed the instant motion to transfer. ECF No. 32. Meta does not argue that the Western District of Texas (“WDTX”) is an improper venue for this case; instead, it argues that the Northern District of California (“NDCA”) is a more convenient forum, pointing to the location of potential witnesses and the location of relevant records. Id. at 1. AlmondNet contends that the case should remain in the WDTX, pointing to, among other factors, the ease of accessing electronic records in either forum, witnesses in or near this District, and the co-pending litigation in this Court. ECF No. 54 at 1.
II. LEGAL STANDARD
In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of the regional circuit-here, the Fifth Circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). 28 U.S.C. § 1404(a) provides in part that “[f]or the convenience of parties and witnesses, . . . a district court may transfer any civil action to any other district or division where it might have been brought . . . ” Id. “Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.'” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
The preliminary question under § 1404(a) is whether a civil action “‘might have been brought' in the destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir. 2008) [hereinafter Volkswagen II]. If the destination venue would have been a proper venue, then “[t]he determination of ‘convenience' turns on a number of public and private interest factors, none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004) (footnote omitted). The private interest factors include: “(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) [hereinafter Volkswagen I] (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the application of foreign law.” Id. Courts evaluate these factors based on the situation which existed at the time of filing, rather than relying on hindsight knowledge of the defendant's forum preference. Hoffman v. Blaski, 363 U.S. 335, 343 (1960).
The moving party has the burden to prove that a case should be transferred for convenience. Volkswagen II, 545 F.3d at 314. The burden is not simply that the alternative venue is more convenient, but that it is clearly more convenient. Id. at 314-15. While “clearly more convenient” is not the same as the “clear and convincing” standard, the moving party must still show more than a mere preponderance. Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019). Yet, the Federal Circuit has clarified that, for a court to hold that a factor favors transfer, the movant need not show an individual factor clearly favors transfer. In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020).
III. DISCUSSION
A. Motions to Strike
First, the Court considers AlmondNet's two motions to strike. In its motion to strike the declaration of Nicholas Wong, AlmondNet asks the Court to strike Mr. Wong's declaration because AlmondNet was not able to depose Mr. Wong. ECF No. 49 at 1. Mr. Wong [Redacted] before his scheduled deposition. ECF No. 51 at 1−2. In response, AlmondNet proposed that Meta provide a substitute witness in Mr. Wong's place. ECF No. 49 at 1. Meta initially rejected AlmondNet's proposal in the hopes that Mr. Wong would be able available [Redacted]. ECF No. 51 at 2. A few weeks later, Meta identified Michelle Woodhouse, an in-house attorney at Meta to “stand in Mr. Wong's place.” ECF No. 49 at 1. But AlmondNet claims that just before Ms. Woodhouse's deposition, Meta stated that Ms. Woodhouse would only appear as a Rule 30(b)(6) witness and would “not appear[] in the stead of Mr. Wong in his personal capacity.” Id. AlmondNet complains that Ms. Woodhouse could not explain the bases of the claims in Mr. Wong's declaration. Id. AlmondNet argues that Meta has prevented AlmondNet from meaningfully testing the Wong declaration. Id. at 5.
Meta argues that Ms. Woodhouse was the next most knowledgeable person regarding Mr. Wong's declaration. ECF No. 51 at 2. Meta claims that it offered Ms. Woodhouse to substitute Mr. Wong as a 30(b)(6) witness, not to replace Mr. Wong in his personal capacity. Id. Meta claims that AlmondNet did not serve Rule 30(b)(1) notices of Ms. Woodhouse and Mr. Wong until the day before Ms. Woodhouse's deposition. Id. Meta argues that Mr. Wong's declaration was sufficiently detailed and Ms. Woodhouse was able to provide supporting information during her deposition. Id. at 3, 5.
The Court agrees with AlmondNet that parties generally should have the opportunity to depose their opponent's declarants. However, the Court is also aware that this case involves an extraordinary circumstance. Mr. Wong was unavailable for his deposition at no fault of Meta. Further, Meta provided Ms. Woodhouse as an alternative witness. And while Ms. Woodhouse did not replace Mr. Wong in his personal capacity, she did respond to questions on her personal knowledge of Meta and Mr. Wong's declaration. ECF No. 51 at 6. The Court is unsure what more information Ms. Woodhouse could provide. Given Mr. Wong's unavailability, she could not testify about his knowledge. In the Court's opinion, in response to Mr. Wong's [Redacted], Meta offered the next best witness available. The Court declines to punish Meta because of Mr. Wong's [Redacted]. The Court denies AlmondNet's motion to strike Mr. Wong's declaration. But while the Court denies AlmondNet's motion, in the analysis of Meta's motion below, the Court remains cognizant that AlmondNet did not have the opportunity to depose Mr. Wong.
In its second motion to strike, AlmondNet asks the Court to strike the declaration of Jennifer Allen. ECF No. 63. The declaration of Ms. Allen, a Meta Case Manager, was offered in Meta's reply in support of its motion to transfer venue. ECF No. 58-1. Ms. Allen provided a declaration regarding her role at Meta. Id. ¶ 1. In her declaration, Ms. Allen explains that she works primarily on general litigation and employment litigation matters. Id. ¶ 2. Ms. Allen states that she does not work on patent litigation and has never worked on this case. Id. Ms. Allen also states that [Redacted] and [Redacted].” Id. ¶ 3. Ms. Allen's declaration was offered as a response to AlmondNet's allegations that Meta “selectively exclud[ed] employees located in the WDTX, without any legitimate basis for doing so.” ECF No. 67 at 3; ECF No. 54 at 3.
AlmondNet argues that Ms. Allen's declaration should be stricken because Meta makes a new argument that should have appeared in Meta's initial motion. ECF No. 63 at 1. AlmondNet argues that Meta's approach has deprived AlmondNet of the opportunity to meaningfully respond. Id. AlmondNet further argues that it was deprived of the opportunity to depose Ms. Allen regarding her declaration. Id. at 3. In the alternative, AlmondNet asks the Court to consider its attached proposed sur-reply. Id. at 4; ECF No. 63-2.
Meta argues that AlmondNet's motion to strike should be denied because Meta provided Ms. Allen's declaration to rebut misleading speculation raised in AlmondNet's response to Meta's motion to transfer venue. ECF No. 67 at 1. Meta points out that Mr. Wong's declaration attached to its motion to transfer venue explained that one eDiscovery employee, Ms. Allen, is located in the WDTX, but does not work on this case. Id. at 1−2. Meta argues that it offered Ms. Allen's declaration in response to AlmondNet's speculation that Ms. Allen could access the relevant electronic evidence from the WDTX. Id. at 3.
The Court agrees with AlmondNet that generally parties should not present new arguments for the first time in a reply brief. But a party can properly raise new arguments in a reply to rebut a new argument raised by the opposing party in response. With regard to the first portion of Ms. Allen's declaration, the Court disagrees with AlmondNet that Meta improperly delayed in providing Ms. Allen's declaration. Meta addressed Ms. Allen's role in its transfer motion with citations to Mr. Wong's declaration. ECF No. 32 at 5. AlmondNet doubted the accuracy of Meta's claims and speculated that Meta had “selectively exclude[ed] employees located in the WDTX.” ECF No. 54 at 4. The first paragraph of Ms. Allen's declaration provides background information about her role. ECF No. 58-1 ¶ 1. The second paragraph of Ms. Allen's declaration responds to AlmondNet's speculation directly, explaining why she does not work on this case. Id. ¶ 2. The Court finds that these two paragraphs are an appropriate response to AlmondNet's speculation in its opposition to Meta's motion. And this evidence is also not an entirely new argument made for the first time in a reply brief.
With respect to the third paragraph of Ms. Allen's declaration, which discusses Meta's [Redacted], the Court concludes that this largely repeats what is provided in Ms. Woodhouse's deposition testimony. ECF No. 69 at 167 [Redacted] AlmondNet also cites to this portion of Ms. Woodhouse's deposition testimony. ECF No. 54 at 4 (citing pages 166−68 of the Woodhouse Deposition Transcript). The Court concludes that the third paragraph of Ms. Allen's declaration provides minimal new information and presents minimal prejudice to AlmondNet.
However, to reduce any possible prejudice to AlmondNet caused by Ms. Allen's declaration, the Court will consider its sur-reply in the analysis that follows. Thus, the Court denies AlmondNet's motion to strike Ms. Allen's declaration, but grants AlmondNet's motion to deem as filed the attached proposed sur-reply.
B. Motion to Transfer
The threshold determination in the § 1404(a) analysis is whether this case could initially have been brought in the destination venue-the NDCA. Neither party disputes that venue could be proper in the NDCA. Meta operates a regular and established place of business in the NDCA.
This Court therefore finds that venue would have been proper in the NDCA had the suit originally been filed there. Thus, the Court now analyzes the private and public interest factors to determine whether the NDCA is a clearly more convenient forum than the WDTX.
i. The Private Interest Factors
1. The Cost of Attendance and Convenience for Willing Witnesses
The most important factor in the transfer analysis is the convenience of the witnesses. In re Genentech, Inc., 566 F.3d 1388, 1342 (Fed. Cir. 2009). According to Fifth Circuit law, if the distance between a current venue and a proposed venue is more than 100 miles, the inconvenience to witnesses increases in direct relationship to the additional distance they must travel if the matter is transferred. Volkswagen II, 545 F.3d at 317. But it is unclear when the 100-mile rule applies, as the Federal Circuit has stated that courts should not apply the rule “rigidly” when witnesses would have to travel a significant distance no matter what venue they testify in. In re Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen II, 545 F.3d at 317). them to travel to a distant forum and to be away from their homes and work for an extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed. Cir. Sept. 27, 2021). According to the Federal Circuit, time is a more important metric than distance. Id. However, the Federal Circuit has also held that when willing witnesses will have to travel a significant distance to either forum, the slight inconvenience of one forum in comparison to the other should not weigh heavily on the outcome of this factor. In re Apple, 979 F.3d at 1342. When analyzing this factor, the Court should consider all potential witnesses. Alacritech Inc. v. CenturyLink, Inc., No. 2:16-CV-00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017).
According to Meta, “[s]ignificant portions” of its engineering team that designed the Accused Products are located in the NDCA. ECF No. 32 at 6. Meta has identified four Meta employees who work in Texas, id. at 7, and AlmondNet has identified twelve Meta employees in Texas, ECF No. 54 at 9. Meta also identified employees in Seattle and London, ECF No. 32 at 7, and AlmondNet identifies Meta employees in New York, ECF No. 54 at 10. Lastly, AlmondNet identified one inventor that will testify on its behalf. Id. at 9. Each group of witnesses will be discussed below.
a. Meta Employees in the NDCA
According to Meta, many of the significant portions of the engineering team for the Accused Products are located in its offices in the NDCA. ECF No. 32 at 6. Meta has specifically identified seven key witnesses: (1) [Redacted], a Staff Machine Learning Engineer on Instagram Direct, WhatsApp & Messenger Ads ML, (2) [Redacted], a Software Engineering Manager on the Instagram Ads Delivery and Ranking team, (3) [Redacted], an Engineering Manager on the Advertiser Experience & Performance ENG Team, (4) [Redacted], an Engineering Manager within the Signals Product Experiences engineering team, (5) [Redacted], a Product Marketing Director, (6) [Redacted], an Engineering Manager working on the Facebook ads delivery team, (7) [Redacted], an Engineering Manager within the Automation ENG team. ECF No. 36 ¶¶ 6-7, 11-14, 15-16. Meta points to 170 employees in the NDCA on teams that work on the relevant functionalities of Accused Products. ECF No. 32 at 7. Meta argues that the NDCA would be a more convenient forum for these employees than the WDTX. Id. at 6.
In response, AlmondNet argues that this Court should discount the relevance of these witnesses because Meta's Rule 30(b)(6) witness was unable to provide any specific information about these employees at her deposition. ECF No. 54 at 8. AlmondNet also argues that any inconvenience to Meta's California-based employees caused by travel to this District would be negated because these employees can use Meta's facilities in the WDTX. Id. at 9.
The Court is cognizant that AlmondNet was unable to depose Meta's declarant regarding the identified seven witnesses in the NDCA. Further, the Court acknowledges that Ms. Woodhouse was unable to answer many of the questions that AlmondNet had regarding these employees' roles in Meta. However, Meta has a total of 2,930 employees in its Ads & Business Products pillar in the NDCA. ECF No. 58 at 4. Comparatively, AlmondNet has only identified 200 employees in Meta's Ads & Business Products pillar in Texas. ECF No. 54 at 8. Based on the large number of employees in the NDCA that work on Meta's advertising functionality, the Court concludes that it is likely that Meta has a number of relevant witnesses from its Menlo Park office, which may include those witnesses identified by Meta in its motion. The Court concludes that these Californiabased witnesses support transfer. Even if these witnesses can use Meta's facilities in this District, they would have to spend a significant amount of time away from their homes and work to testify at trial. In re Google, LLC, 2021 WL 4427899, at *4.
b. Meta Employees in Texas
Meta identifies four employees who work in Texas: (1) [Redacted], a member of the engineering team responsible for Messenger ads, who works remotely in Houston, Texas and started at Meta in February 2022, (2) [Redacted], a member of the engineering team responsible for Instagram Ads, who works remotely from Dallas, Texas and started at Meta in February 2022, (3) [Redacted], a member of the engineering team responsible for Instagram Ads, who works remotely from Austin, Texas and started at Meta in October 2021, and (4) [Redacted], a member of the team that works on the Facebook Ads delivery system, who works remotely from Austin, Texas and started at Meta in March 2022. ECF No. 36 at ¶¶ 6-7, 14. Meta argues that these employees will not be called to testify at trial because they are relatively new to Meta and have limited information about the Accused Products. ECF No. 32 at 7.
AlmondNet identifies twelve more employees that it claims work on the Accused Products. ECF No. 54-1 ¶ 4. AlmondNet argues that these sixteen employees have relevant knowledge of the Accused Products. ECF No. 54 at 9. AlmondNet argues that Meta should not be permitted to discount the relevancy of the identified employees by claiming that these Texas-based employees do not have unique knowledge. Id. at 9-10. In response, Meta claims that the twelve identified employees are “arbitrarily selected” and “Meta does not intent to call any of these people as Rule 30(b)(6) or trial witnesses.” ECF No. 58 at 4.
The Court finds that the presence of certain Meta employees in the WDTX weighs slightly against transfer. First, the presence of the four employees identified by Meta weigh against transfer. Both parties agree these employees work on the Accused Products. However, the Court acknowledges that these employees are relatively new to Meta. Because they are new to Meta, these employees likely possess less relevant knowledge than their counterparts in the NDCA.
As for the twelve employees identified by AlmondNet, the Court agrees with AlmondNet that some of these employees may be relevant. In particular, [Redacted], who works on the Ads ML team, may have relevant knowledge of the Accused Products. ECF 54-34. [Redacted], who works in ads delivery, may also be relevant. ECF No. 54-41. And [Redacted], who is a software engineer working on Ads Infrastructure backend systems, may have relevant technical knowledge. ECF No. 54-36. Lastly, [Redacted], who works on “[r]earchitecting the Ads decisioning platform” may also have relevant knowledge. ECF No. 54-39. The Court concludes that the presence of these Meta employees in Texas weighs slightly against transfer.
c. Meta Employees in Seattle, London, and New York
Meta argues that the NDCA is a more convenient forum for its employees in London because direct flights are available to the NDCA, but not to Waco. ECF No. 32 at 7. Meta argues that the NDCA is a more convenient forum for its employees in Seattle because travel from Seattle to San Francisco is more convenient and less expensive than travel from Seattle to Waco. ECF No. 58 at 4 n.5. AlmondNet argues that this Court is more convenient for Meta's witnesses in New York because New York is closer to the WDTX than the NDCA. ECF No. 54 at 10.
The Court finds that neither forum is convenient for Meta's employees in London and New York. While Meta cites In re Atlassian Corp. for the proposition that this factor supports transfer because Waco lacks a major airport, the Federal Circuit did not endorse that position in that case. No. 2021-177, 2021 WL 5292268, at * 3 (Fed. Cir. Nov. 15, 2021). Instead, the Federal Circuit has held that when willing witnesses will have to travel a significant distance to either forum, the slight inconvenience of one forum in comparison to the other should not weigh heavily on the outcome of this factor. In re Apple, 979 F.3d at 1342. Here, witnesses from London and New York would have to travel a significant distance to either forum. The slight inconvenience of one forum in comparison to another does not weigh in the analysis of this factor.
The Court also rejects AlmondNet's argument that this Court is more convenient for Meta's employees in New York. While the Fifth Circuit's 100-mile rule would suggest that this forum is more convenient for Meta's New York-based employees, the Federal Circuit has stated that this rule should not apply “rigidly” where witnesses would have to travel a significant distance no matter what venue they testify in. In re Apple, 979 F.3d at 1342. Thus, because Meta's employees in New York would have to travel a significant distance to either venue, the Court does not consider these employees in the analysis of this factor.
The Court finds that the NDCA is likely a more convenient forum for Meta's employees in Seattle. As this Court has previously held, travel from Seattle to the NDCA would likely be more convenient than travel from Seattle to the WDTX. Smarter Agent v. Redfin, No. 6:21-cv-1172, 2022 WL 2835861, at *5 (W.D. Tex. July 20, 2022). Thus, these Meta employees in Seattle weigh in favor of transfer.
d. AlmondNet Employees
AlmondNet only identifies one potential witness: Roy Shkedi. ECF No. 54 at 10. AlmondNet argues that this Court is a more convenient forum for Mr. Shkedi because he will have to travel to this District for other cases here. Id. Meta argues that the NDCA is a more convenient forum for Mr. Shkedi because he is based in New York and it is easier to travel from New York to the NDCA than to Waco. ECF No. 32 at 7.
The Court rejects AlmondNet's argument that Waco is a more convenient forum for AlmondNet's witness Mr. Shkedi because Mr. Shkedi has to travel to Waco for other cases. As this Court has held, “the Court will not weigh the convenience of a plaintiff's witnesses against transfer under this factor merely because the plaintiff attests that travel to this District would not represent an inconvenience upon witnesses with no apparent connection to this District.” XR Communications, LLC v. Google LLC, No. 6:21-cv-00625-ADA, 2022 WL 3702271, at *4 (W.D. Tex. Aug. 26, 2022). Even though Mr. Shkedi will be travelling to Waco for other cases, Waco is not necessarily a more convenient forum for him. AlmondNet cannot push this factor to weigh against transfer simply because it chose this venue. AlmondNet's “choice of venue is already baked into the movant's burden.” Id. The Court also rejects Meta's argument that Mr. Shkedi would find the NDCA a more convenient forum. As discussed above, witnesses from New York would have to travel for a significant amount of time even if this case is transferred. Thus, Mr. Shkedi's presence in New York does not impact the analysis of this factor.
e. Conclusion
Meta has identified four key witnesses in the NDCA and Seattle. A few of relevant Meta employees may be based in the WDTX. But Meta's employees on the West Coast are likely more relevant because they have been employed at Meta for longer. Further, Meta's relevant employees in the NDCA likely outnumber Meta's relevant employees in Texas. Thus, the Court finds this factor weighs in favor of transfer.
2. The Relative Ease of Access to Sources of Proof
“In considering the relative ease of access to proof, a court looks to where documentary evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[T]he question is relative ease of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases in original). “In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant's documents are kept weighs in favor of transfer to that location.” In re Apple Inc., 979 F.3d at 1340 (citing In re Genentech, 566 F.3d at 1345).
Meta argues this factor favors transfer because documents concerning the design, development, operation, marketing, and finances of the Accused Products “will be collected” in its California offices. ECF No. 32 at 4. And while Meta has one eDiscovery employee in its Austin offices, Meta explains that this employee does not work on this case. Id. at 5. Further, Meta argues that the relevant documents are created and maintained by employees based in the NDCA, Seattle, and London. Id. at 5.
In response, AlmondNet argues that Meta failed to show why its electronic documents are not accessible in the WDTX. ECF No. 54 at 4. AlmondNet also argues that Meta has an eDiscovery employee in this District and Meta has not explained why this employee is not working on this case. Id. AlmondNet also argues that the relevant inquiry under this factor is the location of physical evidence, including the hardware that stores relevant electronic evidence. Id. AlmondNet argues that because Meta has not identified the location of the servers storing its electronic evidence, this factor should not favor transfer. Id. at 5. AlmondNet also points to data centers in the state of Texas that may store the relevant documents. Id. AlmondNet also complains that Meta has not identified what documents are “created and maintained” in the NDCA. Id.
In its reply, Meta explains that only its [Redacted] can collect code for litigation. ECF No. 58 at 2. This team is primarily based in California and London. Id. Further, Meta explains that the one eDiscovery employee in the WDTX does not work on this case because she does not work on patent cases. Id. at 3. In its sur-reply, AlmondNet argues that Meta's response about its WDTX-based eDiscovery employee is unpersuasive because it does not explain whether this employee can collect documents that are not source code. ECF No. 63-2 at 1. AlmondNet also argues that the location of the [Redacted] is irrelevant because what matters is the location of the source code itself. Id. at 2.
To start, the Court notes that the Fifth Circuit has recently agreed with a district court that concluded that this factor is neutral because electronic evidence is equally accessible in either forum. In re Planned Parenthood Fed'n of Am., Inc., No. 22-11009, 2022 WL 16549164, at *3 (5th Cir. Oct. 31, 2022). The Fifth Circuit held that “[t]he location of evidence bears much more strongly on the transfer analysis when . . . the evidence is physical in nature.” Id. But the Federal Circuit has held that it is an error to conclude this factor is neutral because electronic documents are easily accessible in both forums. In re Apple, Inc., No., 2022 WL 1196768, at *4 (Fed. Cir. Apr. 22, 2022). To the extent that these two holdings can be reconciled, the Court concludes that the location of physical evidence is more important to this analysis than the location where electronic documents are typically accessed. But the Court still considers the location of document custodians of electronic documents in its analysis of this factor. In re Google LLC, No. 2021-178, 2021 WL 5292267, at *2 (Fed. Cir. Nov. 15, 2021).
The Court agrees with Meta that at least some of its electronic evidence is likely maintained and created by Meta employees in the NDCA. The Federal Circuit has held that it is an error for the Court not to consider “the location of document custodians and [the] location where documents are created and maintained” within the analysis of this factor. Id. As the Court discussed above in analyzing the willing witness factor, there are likely Meta employees with relevant knowledge in the NDCA. But because Meta has failed to provide the Court with any specifics of the documents these employees create and maintain, the Court is only able to conclude that it is likely that at least some relevant electronic documents are created and maintained in the NDCA.
Based on the same rationale, the Court agrees with AlmondNet that some electronic documents are also likely created and maintained by Meta employees in or near the WDTX. As discussed above, AlmondNet has established that at least a few Meta employees are located in or near the WDTX. These employees likely create and maintain electronic documents related to the Accused Products that may be relevant. Thus, the Court concludes that it is likely that at least some relevant Meta documents are created and maintained in or near the WDTX. However, because the Meta employees are outnumbered by their colleagues in the NDCA and some are relatively new to Meta, the Court finds that these employees likely create and maintain fewer documents than the identified employees in the NDCA.
Turning to evidence gathered by Meta's [Redacted], the Court somewhat agrees with Meta that if the necessary evidence can only be accessed electronically from the NDCA, this could favor transfer. But the Court is hesitant to say that all document collection by Meta's eDiscovery team based in California favors transfer. For instance, if the eDiscovery team in the transferee is gathering physical documents or electronic documents created and maintained in the transferor forum, that should not favor transfer. The presence of an eDiscovery team in a particular forum should not outweigh the location of the physical evidence or the location of document custodians.
The Court sympathizes with AlmondNet's frustration regarding the physical location of Meta electronic evidence and source code. The Court agrees with AlmondNet that the physical location of electronic information is relevant to the Court's analysis of this factor. However, the Court is unable to conclude, based on the presence of a Meta data center in this state, that the relevant electronic documents are stored in or near this District. In re Google LLC, No. 2021-170, 2021 WL 4427899, at *6 (Fed. Cir. Sept. 27, 2021) (“Nor does the fact Google stores documents in electronic form at data centers around the country weigh in favor of holding trial in Texas.”). Thus, the physical location of Meta's electronic evidence is not included in the analysis of this factor.
Because more document custodians likely reside in the NDCA rather than the WDTX, the Court finds that this factor weighs in favor of transfer.
3. The Availability of Compulsory Process to Secure the Attendance of Witnesses
Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within 100 miles of where the person resides, is employed, or regularly transacts business in person”; or (b) “within the state where the person resides, is employed, or regularly transacts business in person, if the person . . . is commanded to attend a trial and would not incur substantial expense.” FED. R. CIV. P. 45(c)(1)(A), (B)(ii). Under this factor, the Court focuses on non-party witnesses whose attendance may need to be secured by a court order.” Fintiv Inc., 2019 WL 4743678, at *14 (citing Volkswagen II, 545 F.3d at 316). This factor “weigh[s] heavily in favor of transfer when more third-party witnesses reside within the transferee venue than reside in the transferor venue.” In re Apple, 581 Fed.Appx. 886, 889 (Fed. Cir. 2014) (citing In re Genentech, 566 F.3d at 1345). The Federal Circuit has held that “when there is no indication that a non-party witness is willing, the witness is presumed to be unwilling and considered under the compulsory process factor.” In re HP Inc., No. 2018-149, 2018 WL 4692486, at *3 n.1 (Fed. Cir. Sept. 25, 2018).
Meta argues that this factor weighs in favor of transfer because it has identified by name eight prior art witnesses in the NDCA that patented prior art Meta relies on in its invalidity contentions. ECF No. 32 at 6. Further, Meta points to Google, which acquired the prior art system DoubleClick and is based in the NDCA. Id. Meta also claims that the founder of DoubleClick, Kevin O'Connor, is located in California. Id. at 6 n.3. Meta also points to Charles Ribaudo, who is the co-founder of the prior art system Jumbo Networks and is located in the NDCA. Id. at 6.
In response, AlmondNet accuses Meta of “cherry-pick[ing]” prior art witnesses without explaining why these individuals have relevant knowledge. ECF No. 54 at 6. AlmondNet also argues that Meta has failed to provide reliable evidence that these individuals are actually located in the NDCA. Id. AlmondNet claims the faces of the prior art references and LinkedIn are not a reliable sources of evidence. Id. With respect to DoubleClick, AlmondNet argues that Meta has failed to identify any witnesses in the NDCA with relevant knowledge of the prior art system. Id. at 7. AlmondNet also points out that the other co-founder of Jumbo Networks, James Young, is located in the WDTX. Id. AlmondNet also identifies five prior art inventors in Texas. Id.
The Court agrees that the eight prior art witnesses identified by Meta may be relevant at trial. While the Court agrees with AlmondNet that prior art witnesses are unlikely to testify at trial, the Federal Circuit has held it is an error to disregard prior art witnesses simply because prior art witnesses are generally unlikely to testify at trial. In re Hulu, LLC, No. 2021-142, 2021 WL 3278194, at *3 (Fed. Cir. Aug. 2, 2021). The Court concludes that the prior art witnesses have relevant knowledge of the prior art references and systems that Meta may rely on in its invalidity defense. Meta has shown that these prior artists are relevant by relying on these prior artists' patents in its invalidity contentions. While AlmondNet complains that Meta relies on the faces of prior art references and LinkedIn profiles to determine the location of prior art witnesses, it relies on the same methodology. ECF No. 54-1 ¶¶ 15, 17, 20-22, 24-25, 30-41. The Court does not reject LinkedIn as a source entirely. Monterey Rsch., LLC v. Broadcom Corp., No. 6:21-cv-00541-ADA, 2022 WL 526240, at *5 (W.D. Tex. Feb. 21, 2022). And while the information on the face of the prior art references may be outdated, Meta has provided LinkedIn profiles for many of the prior artists it identifies. ECF No. 33 ¶¶ 12-31.
The Court also agrees that the presence of Jumbo Networks co-founder, Charles Ribaudo, in the NDCA weighs in favor of transfer. Lastly, the Court agrees with Meta that the presence of the founder of DoubleClick, Kevin O'Connor, in California weighs in favor of transfer. AlmondNet argues that that Mr. O'Connor is outside of the NDCA's subpoena power. ECF No. 54 at 7 n.5. However, Rule 45 provides that a person can be subpoenaed to testify at a trial “within the state where the person resides, is employed, or regularly transacts business in person” so long as the person “is a party or parry officer” or “is commanded to attend a trial and would not incur substantial expense.” FED. R. CIV. P. 45(c)(1)(B). Because Mr. O'Connor resides within the state of California, he may fall within the NDCA's subpoena power.
The Court agrees with AlmondNet that the prior art witnesses in Texas weigh against transfer. AlmondNet identified another co-founder of Jumbo Networks, James Young, who resides in this District. ECF No. 54 at 7. AlmondNet also identified another five prior art inventors in Texas. Id. Meta claims that these witnesses are irrelevant because “it is hard to believe AlmondNet would call prior artists to invalidate its patents.” ECF No. 58 at 4. However, the Court disagrees. AlmondNet may call these witnesses to testify as to the specifics of the prior art to show how the prior art differs from AlmondNet's claimed invention. Meta also may call these witnesses to testify at trial. Thus, the Court includes the Texas-based prior artists in its analysis of this factor.
Because a greater number of prior art witnesses relied on in Meta's invalidity contentions are located within the subpoena power of the NDCA, the Court concludes that this factor at least weighs slightly in favor of transfer.
4. All Other Practical Problems That Make Trial of a Case Easy, Expeditious, and Inexpensive
When considering the private interest factors, courts must also consider “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d at 314. “Particularly, the existence of duplicative suits involving the same or similar issues may create practical difficulties that will weigh heavily in favor or against transfer.” PersonalWeb Techs., LLC v. NEC Corp. of Am., Inc., No. 6:11-cv-655, 2013 WL 9600333, at *5 (E.D. Tex. Mar. 21, 2013). “[W]here there is a co-pending litigation before the trial court involving the same patentin-suit, and pertaining to the same underlying technology and accusing similar services, [the Federal Circuit] cannot say the trial court clearly [abuses] its discretion in denying transfer.” In re Vistaprint Ltd., 628 F.3d 1342, 1346 n.3 (Fed. Cir. 2010).
Meta argues that this factor is favors transfer because the practical considerations, including the convenience of the witnesses and the convenience of the attorneys, favor transfer to the NDCA. ECF No. 32 at 8 & n.5. In response, AlmondNet argues this factor weighs strongly against transfer because the five co-pending cases involving the Asserted Patents “will involve substantial overlap in issues of fact and law.” ECF No. 54 at 11. AlmondNet argues that keeping these cases together will promote judicial efficiency because the Court can coordinate common issues of claim construction and invalidity. Id. AlmondNet argues that transferring the case to another court will cause delay and waste judicial resources. Id. at 11-12. AlmondNet argues that the Court should not consider the convenience to the witnesses and the parties' counsel in the analysis of this factor. Id. at 12 & n.8.
The Court agrees with AlmondNet that the convenience of the witnesses and the parties' counsel is irrelevant to this factor. The relevant consideration under this factor is other practical considerations, outside of the previous factors discussed above. Further, the Fifth Circuit has stated that it is an abuse of discretion to consider the location of counsel under § 1404(a). Volkswagen I, 371 F.3d at 206. Thus, the Court does not consider the convenience of willing witnesses or the convenience of counsel under this factor.
The Court agrees with AlmondNet that maintaining this action in the WDTX would improve judicial efficiency. The other co-pending cases involve the same Asserted Patents and the same technology. This Court could handle overlapping issues more expeditiously than if the cases were divided among various district courts. The Court acknowledges that two of the other copending cases have been transferred to other venues, one to the NDCA. AlmondNet, Inc. v. Roku, Inc., No. 6:21-cv-00876-ADA (W.D. Tex. Oct. 20, 2021), ECF No. 56 (transferring to the District of Delaware); AlmondNet, Inc. v. Samsung Electronics Co., Ltd., No. 6:21-cv-00891-ADA (Nov. 28, 2022), ECF No. 65 (transferring to the NDCA). However, two cases remain in this District. AlmondNet, Inc. v. Microsoft Corp., No. 6:21-cv-00897-ADA (W.D. Tex. Aug. 27, 2021); AlmondNet, Inc. v. Amazon.com, Inc., No. 6:21-cv-00898-ADA (W.D. Tex. Aug. 27, 2021). Judicial efficiency would be best served if the three co-pending cases remained in this District.
The Court concludes this factor weighs against transfer.
ii. The Public Interest Factors
1. Administrative Difficulties Flowing from Court Congestion
This factor concerns “whether there is an appreciable difference in docket congestion between the two forums.” In re Adobe Inc., 823 Fed. App'x 929, 932 (Fed. Cir. 2020). It considers the “[t]he speed with which a case can come to trial and be resolved.” In re Genentech, Inc., 566 F.3d at 1347. In this analysis, court congestion is considered “the most speculative” factor, and when “relevant factors weigh in favor of transfer and others are neutral, then the speed of the transferee district court should not alone outweigh all those other factors.” Id.
Meta argues that this factor is neutral because both forums are similarly congested and typically reach trial within a similar time frame. ECF No. 32 at 8. Meta points to data that shows the NDCA reaches trial within 30.9 months on average and this Court reaches trial within 25.5 months on average. Id. In response, AlmondNet argues that this factor weighs against transfer because this Court is able to reach trial faster than the NDCA. ECF No. 54 at 12. AlmondNet points to data that suggests that this Court reaches trial within 737 days on average and the NDCA reaches trial within 1,196 days on average. Id.
While the Federal Circuit has previously held that there are “no significant differences in caseload or time-to-trial statistics” between the WDTX and the NDCA, In re Juniper Networks, Inc., 14 F.4th 1313, 1322 (Fed. Cir. 2021), recent statistics show that this Court has been able to bring cases to trial within two years.Data from AlmondNet suggests that the average time to trial for the NDCA is over three years. ECF No. 49-14. And even Meta's data shows that this Court can bring cases to trial at least five months faster than the NDCA. ECF No. 32 at 8. The Federal Circuit has emphasized the importance of rapid disposition of patent cases. Kahn v. Gen. Motors Corp., 889 F.2d 1078, 1080 (Fed. Cir. 1989). It has even acknowledged Congress's interest in the “quick” resolution of patent disputes. See, e.g., Ethicon Endo-Surgery, Inc. v. Covidien LP, 826 F.3d 1366, 1367 (Fed. Cir. 2016). In view of Federal Circuit law and the available time-to-trial statistics, the Court finds this factor weighs at least slightly against transfer.
See, e.g., MV3 Partners v. Roku, Inc., 6:18-cv-00308-ADA (W.D. Tex., filed Oct. 16, 2018) (23.7 months from case filing to trial); Cloudof Change, LLC, v. NCR Corp., No. 6:19-cv-00513-ADA (W.D. Tex., filed August 30, 2019) (20.3 months from case filing to trial); VLSI Tech. LLC v. Intel Corp., No. 6:21-cv-00057-ADA (W.D. Tex., filed Apr. 11, 2019) (22.4 months from case filing to trial); Freshub, Inc. v. Amazon.Com Inc., No. 6:21-cv-00511-ADA (W.D. Tex., filed Jun. 24, 2019) (23.7 months from case filing to trial); ESW Holdings, Inc. v. Roku, Inc., No. 6:19-cv-00044-ADA (W.D. Tex., filed Feb. 8, 2019) (25.9 months from case filing to trial); Profectus Tech. LLC v. Google LLC, 6:20-cv-00101-ADA (W.D. Tex., filed Feb. 10, 2020) (19.6 months from case filing to trial); Jiaxing Super Lighting v. CH Lighting Tech., 6:20-cv-00018-ADA (W.D. Tex., filed Jan. 10, 2020) (21.7 months from case filing to trial); VideoShare LLC v. Google LLC, 6:19-cv-663-ADA (W.D. Tex., filed Nov. 15, 2019) (23.8 months from case filing to trial); NCS Multistage Inc. v. Nine Energy Serv.'s, Inc., No. 6:20-cv-00277-ADA (W.D. Tex., filed Mar. 24, 2020) (21.8 months from case filing to trial); EcoFactor, Inc. v. Google LLC, No. 6:20-cv-00075-ADA (W.D. Tex., filed Jan. 31, 2020) (24 months from case filing to trial); Densys Ltd. v. 3Shape Trio A/S, 6:19-cv-00680-ADA (W.D. Tex., filed Nov. 26, 2019) (28.3 months from case filing to trial); Appliance Computing III, Inc. v. Redfin Corp., No. 6:20-cv-00376-ADA (W.D. Tex., filed May 11, 2020) (24 months from case filing to trial); Caddo Sys. Inc., v. Microchip Tech. Inc., No. 6:20-cv-00245-ADA (W.D. Tex., filed March 27, 2020) (26.5 months from case filing to trial); SunStone Information Def., Inc. v. International Bus. Machines Corp., No. 6:20-cv-1033-ADA (W.D. Tex., filed Nov. 9, 2020) (21.0 months from case filing to trial); NCS Multistage Inc. v. TCO Products Inc., No. 6:20-cv-00622-ADA (W.D. Tex., filed Sept. 9, 2020) (23.4 months from case filing to trial); Ravgen, Inc. v. Lab. Corp. of Am. Holdings, No. 6:20-cv-00969-ADA (W.D. Tex. filed Nov. 16, 2020) (23.1 months from case filing to trial).
2. Local Interest in Having Localized Interests Decided at Home
Under this factor, the Court must evaluate whether there is a local interest in deciding local issues at home. Volkswagen II, 545 F.3d at 317. Local interests in patent cases “are not a fiction.” In re Samsung Electronics Co., 2 F.4th 1371, 1380 (Fed. Cir. 2021). “A local interest is demonstrated by a relevant factual connection between the events and the venue.” Word to Info, Inc. v. Facebook, Inc., No. 3:14-CV-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015). “[T]he sale of an accused product offered nationwide does not give rise to a substantial interest in any single venue.” In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1338 (Fed. Cir. 2009). “This factor most notably regards not merely the parties' significant connections to each forum writ large, but rather the ‘significant connections between a particular venue and the events that gave rise to a suit.'” In re Apple, 979 F.3d at 1344 (emphasis in original) (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010)). Courts should not heavily weigh a party's general contacts with a forum that are untethered from the lawsuit, such as a general presence. Id. Moreover, “little or no weight should be accorded to a party's ‘recent and ephemeral' presence in the transferor forum, such as by establishing an office in order to claim a presence in the district for purposes of litigation.” In re Juniper Networks, Inc., 14 F.4th at 1320 (quoting In re Microsoft Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011)). To determine which district has the stronger local interest, the Court looks to where the events forming the basis for infringement occurred. Id. at 1319.
Meta argues that the local interest factor favors transfer because the Accused Products were designed and developed in the NDCA. ECF No. 32 at 9. Meta also points out that its headquarters are located in the NDCA. Id. Meta argues that this litigation calls into question the work of employees in the NDCA. Id. And while Meta has a few employees working in Texas on the Accused Products, these employees have only worked at Meta for a few months. Id.
In response, AlmondNet argues that this District has a strong local interest because Meta has a substantial presence in this District. ECF No. 54 at 13. AlmondNet points to Meta's office space, employees, and investments in the WDTX. Id. AlmondNet also argues that this factor weighs against transfer because Meta has over 200 employees in Texas that work in Meta's Ads products group. Id. AlmondNet also points to the prior artists in the WDTX. Id. AlmondNet argues that Meta overstates the NDCA's local interest because the design and development may have taken place in Seattle and London. Id. at 14. Additionally, AlmondNet argues that this District has an interest because the technology involves targeted ads delivered to customers in the WDTX. Id. at 13.
The Court agrees with Meta that its presence in the NDCA weighs in favor of transfer. More employees that work on the Accused Products are located in the NDCA than the WDTX. Further, Meta's headquarters are located in the NDCA. While AlmondNet complains that the design and development may have taken place elsewhere, the issue here is the relative local interests between the NDCA and WDTX. In re Juniper Networks, Inc., 14 F.4th at 1319 (holding that a “greater” localized interest in the dispute favors transfer). Because the Accused Products were likely partially developed in the NDCA, many of the events that gave rise to the suit likely occurred in that district.
But the Court agrees with AlmondNet that Meta's presence in the WDTX weighs slightly against transfer. Meta has a significant presence in this District. Importantly, a few employees who work on the Accused Products reside in or near this District. Because these employees work in the WDTX, at least some of the events that gave rise to this suit may have occurred here. But the Court recognizes that the employees in the WDTX are relatively new to Meta. The Court finds that it is likely that the Meta employees in the WDTX have not contributed to the development of the Accused Products to the same extent as their colleagues in the NDCA.
Lastly, the Court disagrees with AlmondNet that the WDTX has a local interest because the case involves targeted ads delivered to customers in the WDTX. This case also involves targeted ads delivered to customers in the NDCA. Thus, both the NDCA and the WDTX have a local interest with respect to costumers in their districts.
Because the NDCA likely has a greater local interest in this litigation than the WDTX, the Court finds that this factor weighs at least slightly in favor of transfer.
3. Familiarity of the Forum with the Law That will Govern the Case
Meta and AlmondNet agree that this factor is neutral; both forums are familiar with the law that will govern this case. ECF No. 32 at 10; ECF No. 54 at 14. The Court agrees.
4. Avoidance of Unnecessary Problems of Conflict of Laws or in the Application of Foreign Law
Meta and AlmondNet agree that this factor is neutral-there are no potential conflicts here. ECF No. 32 at 10; ECF No. 54 at 14. The Court agrees.
IV. CONCLUSION
Having considered the private and public interest factors, the Court finds that four of the factors favor transfer, two disfavor transfer, and two factors are neutral. A decision to uproot litigation and transfer is not the consequence of a simple math problem. Instead, a moving party must show that the transferee forum is a clearly more convenient forum. Here, practical considerations and court congestion weigh against transfer. The sources of proof, compulsory process, willing witness, and local interest factors weigh in favor of transfer to the NDCA. The Court finds that Meta has met its burden of showing that the NDCA is a clearly more convenient forum. The Court's conclusions for each factor are summarized in the following table:
Factor
The Court's Finding
Relative ease of access to sources of proof
Favors transfer
Cost of attendance for willing witnesses
Favors transfer
Availability of compulsory process to secure the attendance of witnesses
Favors transfer
All other practical problems that make trial of a case easy, expeditious and inexpensive
Against transfer
Administrative difficulties flowing from court congestion
Slightly against transfer
Local interest
Slightly favors transfer
Familiarity of the forum with law that will govern case
Neutral
Problems associated with conflict of law
Neutral
IT IS THEREFORE ORDERED that Meta's Motion to Transfer Venue to the Northern District of California is GRANTED (ECF No. 32). IT IS ORDERED that AlmondNet's Motion to Strike the Declaration of Nicholas Wong is DENIED (ECF No. 49). IT IS FURTHER ORDERED that AlmondNet's Motion to Strike the Declaration of Jennifer Allen is GRANTEDIN-PART and DENIED-IN-PART. (ECF No. 63).