Case 6:21-cv-00024-ADA Document 25 Filed 05/28/21 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`NO. 6:21-cv-024- ADA
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`§§§§
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`§§§§§
`
`
`
`NEO WIRELESS, LLC,
`
`Plaintiff
`
`v.
`
`DELL TECHNOLOGIES INC. and DELL
`INC.,
`
`Defendant.
`
`DEFENDANTS’ OPPOSED MOTION FOR INTRA-DISTRICT TRANSFER OF VENUE
`TO THE AUSTIN DIVISION OF THE WESTERN DISTRICT OF TEXAS
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`Highly Restricted - Confidential
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`1
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`DELL EX. 1015
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`

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`Case 6:21-cv-00024-ADA Document 25 Filed 05/28/21 Page 2 of 18
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`TABLE OF CONTENTS
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`Page(s)
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`I.
`II.
`III.
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`IV.
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`STATEMENT OF FACTS ................................................................................................. 2
`LEGAL STANDARD ......................................................................................................... 3
`ARGUMENT ...................................................................................................................... 4
`A.
`Neo Could Have Filed This Case in the Austin Division ....................................... 5
`B.
`The Austin Division Is Clearly More Convenient Than the Waco Division .......... 5
`1.
`Factors Favoring Transfer ........................................................................... 6
`a)
`Relative Ease of Access to Sources of Proof .................................. 6
`b)
`Cost of Attendance for Willing Witnesses...................................... 7
`c)
`All other practical problems that make trial of a case easy,
`expeditious, and inexpensive .......................................................... 9
`Local interest in having localized interests decided at home ........ 11
`d)
`Neutral Factors .......................................................................................... 13
`2.
`CONCLUSION ................................................................................................................. 13
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
`
`10Tales, Inc., v. TikTok Inc.,
`No. 6:20-CV-00810-ADA, 2021 WL 2043978 (W.D. Tex. May 21, 2021) .........................6, 7
`
`Datascape, Ltd. v. Dell Techs., Inc.,
`No. 6:19-cv-00129-ADA, 2019 WL 4254069 (W.D. Tex. June 7, 2019) ...........1, 4, 5, 6, 7, 11
`
`Freshhub, Inc. v. Amazon.com Inc.,
`No. W-19-CV-00388-ADA (W.D. Tex. Sept. 9, 2019), ECF No. 29 .......................................4
`
`Frischhertz v. King,
`No. 19-cv-01017-SJH, 2019 WL 6606532 (W.D. Tex. Dec. 5, 2019) ......................................9
`
`Hammond Dev. Int’l, Inc. v. Amazon.com, Inc.,
`No 6:19-CV-00355-ADA (W.D. Tex. Mar. 30, 2020), ECF No. 65 .........................................4
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020)..................................................................................................6
`
`In re Google Inc.,
`No. 2015-138, 2015 WL 5294800 (Fed. Cir. July 16, 2015) ...................................................11
`
`In re Google Inc.,
`No. 2017-107, 2017 WL 977038 (Fed. Cir. Feb. 23, 2017) ....................................................10
`
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)................................................................................................12
`
`In re Horseshoe Entm’t,
`337 F.3d 429 (5th Cir. 2003) ...................................................................................................11
`
`In re Radmax, Ltd.
`720 F.3d 285, 288 (5th Cir. 2013) ...........................................................................3, 4, 6, 9, 12
`
`In re Toyota Motor Corp.,
`747 F.3d 1338 (Fed. Cir. 2014)..................................................................................................3
`
`In re TracFone Wireless, Inc.,
`No. 2021-118, 2021 WL 865353 (Fed. Cir. Mar. 8, 2021) ......................................................11
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)................................................................................................12
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`Case 6:21-cv-00024-ADA Document 25 Filed 05/28/21 Page 4 of 18
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`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .............................................................................................4, 5, 6
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)................................................................................................10
`
`Mimedx Group, Inc. v. Texas Human Biologics, Ltd.,
`No. 14-CV-464, 2014 WL 12479284 (W.D. Tex. Aug. 12, 2014) ..............3, 5, 6, 7, 10, 11, 12
`
`McCloud v. McLinton Energy Grp., L.L.C.,
`No. 5:14-cv-620-XR, 2014 WL 6388417 (W.D. Tex. Nov. 14, 2014)......................................7
`
`Perry v. Autocraft Invs., Inc.,
`No. 4:13-CV-01959, 2013 WL 3338580 (S.D. Tex. July 2, 2013) ...........................................7
`
`Van Dusen v. Barrack,
`376 U.S. 612 (1964) .................................................................................................................11
`
`Voxer, Inc. v. Facebook, Inc.,
`No. 6:20-CV-00011-ADA, 2020 WL 3416012 (W.D. Tex. June 22, 2020) .............................4
`
`Wet Sounds, Inc. v. Audio Formz, LLC,
`No. 17-cv00141-AWA-LY, 2017 WL 4547916 (W.D. Tex. Oct. 11, 2017) ..........................12
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`STATUTES
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`28 U.S.C. § 1404(a) ...........................................................................................1, 3, 4, 9, 10, 11, 12
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`OTHER AUTHORITIES
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`17 James WM. Moore et al., Moore’s Federal Practice § 111.21[2] (3d ed. 2013) ......................12
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`Defendants Dell Technologies Inc. and Dell Inc. (collectively, “Dell”) seek an intra-district
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`transfer to the Austin Division. Dell was founded in a dorm room at the University of Texas at
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`Austin and has been headquartered in the Austin/Round Rock area — within the Austin Division
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`— for more than 35 years. Dell’s relevant documents and witnesses are also located in the Austin
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`Division. Dell has no facilities or operations in the Waco Division, and this case has no connection
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`to the Waco Division. The only other party to this case, Plaintiff Neo Wireless LCC (“Neo”), is a
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`Delaware corporation based in Wayne, Pennsylvania, with no disclosed connection to the Waco
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`Division. As this Court recently held in another case involving Dell as a defendant and a plaintiff
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`with no connections to the Waco Division, facts like these “weigh[] heavily in favor of transfer [to
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`Austin].” The same result should be reached here. Datascape, Ltd. v. Dell Techs., Inc., No. 6:19-
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`cv-00129-ADA, 2019 WL 4254069, at *2 (W.D. Tex. June 7, 2019). Dell accordingly moves to
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`transfer this case to the Austin Division under 28 U.S.C. § 1404(a) for the convenience of the
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`parties and witnesses.
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`Dell respectfully suggests that the previous (and now expired) district-wide order
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`concerning jury trials in the District should not control the resolution of this motion. The district-
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`wide order extending jury trials in the District due to the Covid-19 pandemic expired by its terms
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`on April 30, 2021 and was not extended. See Fourteenth Supplemental Order Regarding Court
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`Operations Under the Exigent Circumstances Created by the COVID-19 Pandemic (W.D. Tex.
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`Mar. 17, 2021) (hereinafter “District-Wide Standing Order”). Moreover, the Covid-19 conditions
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`in Texas are improving. Vaccines are widely distributed across the State and are available to all
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`Texans age twelve or older. See https://www.dshs.texas.gov/coronavirus/immunize/vaccine.aspx.
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`Coinciding with improvements in State-wide conditions, trials are resuming in the Austin Division.
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`See https://www.txwd.uscourts.gov/judges-information/judges-calendars/#/austin/all-judges/30-
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`days/ (jury trials set for June 14, 2021 in 19-CV-00737 and 18-CR-00410; jury trials set for
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`June 21, 2021 in 18-CV-00422 and 19-CV-00940; jury trial set for June 22, 2021 in 17-CV-
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`00687). In view of these developments, and considering that trial in this case will not occur in
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`2021, resolution of this motion should proceed in the usual course under the expectation that trial
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`of this case will occur in the Austin Division.
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`I.
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`STATEMENT OF FACTS
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`Neo alleges that Dell infringes five patents. Neo has no relevant connections to the Waco
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`Division. It is a non-practicing, patent-assertion entity headquartered in Pennsylvania. ECF 18,
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`First Amended Compl. ¶¶ 1 and 30. The asserted patents were originally assigned to Neocific,
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`Inc. (“Neocific”), which was based in the state of Washington. ECF 18-A (’366 patent), 2; ECF
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`18-B (’517 patent), 2; ECF 18-C (’908 patent), 2; ECF 18-D (’941 patent), 2; ECF 18-E (’450
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`patent). The named inventors for the asserted patents appear to all reside in Washington state. The
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`First Amended Complaint does not identify any other individuals who may be witnesses in this
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`case.
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`Dell has no relevant connections to the Waco Division. As Neo acknowledges in its First
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`Amended Complaint, Dell Technologies Inc. and Dell Inc. are Delaware corporations with their
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`principal places of business in Round Rock, Texas. First Amended Compl. ¶¶ 2-3. Neo has not
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`cited a single fact in its First Amended Complaint supporting venue for Dell in the Waco Division.
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`Nor could it. Mari Kennedy, Dell’s Director, Strategy, Operations and Chief of Staff, for Global
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`HR Services, has confirmed that Dell does not maintain a physical place of business in the Waco
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`Division. See Ex. 1, Decl. of Kennedy in Support of Dell’s Mot. (hereinafter “Kennedy Decl.”),
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`¶ 5. Dell, however, has multiple large, physical campuses in the Austin Division, has
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`approximately 14,000 employees based in the Austin Division, and maintains documents,
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`electronically stored information, and physical evidence at those facilities. Kennedy Decl., ¶¶ 5,
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`2
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`7, 9; Ex. 2, Declaration of Jean Paul Sarkis in Support of Defendants’ Opposed Motion for Intra-
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`District Transfer of Venue (“Sarkis Decl.”), ¶ 6. Indeed, in addition to the global headquarters in
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`Round Rock, Neo’s First Amended Complaint lists five other Dell facilities in the Austin division,
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`as well as several Dell job postings in Austin relating to network technologies. First Amended
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`Compl. ¶¶ 8-9. Dell also has additional facilities and employees throughout the United States and
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`in foreign countries, each of whom ultimately reports to the headquarters in Round Rock. Kennedy
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`Decl., ¶ 5; Sarkis Decl., ¶¶ 6, 8.1
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`II.
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`LEGAL STANDARD
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`“For the convenience of parties and witnesses, in the interest of justice, a district court may
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`transfer any civil action to any other district or division where it might have been brought . . . .”
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`28 U.S.C. § 1404(a). As the Fifth Circuit confirmed in In re Radmax, Ltd., “[t]he § 1404(a) factors
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`apply as much to transfers between divisions of the same district as to transfers from one district
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`to another.” 720 F.3d 285, 288 (5th Cir. 2013) (emphasis added).2 In Radmax, the Fifth Circuit
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`issued a writ of mandamus and reversed a denial of intra-district transfer because “the case ha[d]
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`no connection to the transferor forum and virtually all of the events and witnesses regarding the
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`case . . . [were] in the transferee forum.” Id. at 290. This District has repeatedly recognized and
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`applied the same principle, including in patent cases. For example, in Mimedx Group, Inc. v. Texas
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`Human Biologics, Ltd., the court transferred a patent case from the Austin Division to the San
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`Antonio Division, finding that the patent owner’s choice of venue was not entitled to deference
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`where another division would be more convenient. No. 14-CV-464, 2014 WL 12479284 (W.D.
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`Sources of proof outside Texas are not relevant to this analysis. In re Toyota Motor Corp.,
`1
`747 F.3d 1338, 1340 (Fed. Cir. 2014) (“The comparison between the transferor and transferee
`forums is not altered by the presence of other witnesses and documents in places outside both
`forums.”).
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`2 All emphasis added unless otherwise noted.
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`3
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`Tex. Aug. 12, 2014). This Court has transferred multiple patent cases from the Waco Division to
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`the Austin Division. See, e.g., Datascape, 2019 WL 4254069 at *3; Voxer, Inc. v. Facebook, Inc.,
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`No. 6:20-CV-00011-ADA, 2020 WL 3416012, at *7 (W.D. Tex. June 22, 2020); Freshhub, Inc.
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`v. Amazon.com Inc., No. W-19-CV-00388-ADA (W.D. Tex. Sept. 9, 2019), ECF No. 29;
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`Hammond Dev. Int’l, Inc. v. Amazon.com, Inc., No 6:19-CV-00355-ADA (W.D. Tex. Mar. 30,
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`2020), ECF No. 65.
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`In determining whether transfer is appropriate, the Court must first consider “whether a
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`civil action ‘might have been brought’ in the destination venue.” See In re Volkswagen of Am.,
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`Inc., 545 F.3d 304, 312 (5th Cir. 2008) (quoting § 1404(a)). If the answer to this threshold question
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`is yes, then the Court must then weigh a number of factors to determine the relative convenience
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`of each venue:
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`(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; (4) all other practical
`problems that make trial of a case easy, expeditious and
`inexpensive; (5) the administrative difficulties flowing from court
`congestion; (6) the local interest in having localized interests
`decided at home; (7) the familiarity of the forum with the law that
`will govern the case; and (8) the avoidance of unnecessary problems
`of conflict of laws [or in] the application of foreign law.
`
`Radmax, 720 F.3d at 288 (quotation marks omitted) (citing Volkswagen, 545 F.3d at 315). Where
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`the analysis of the relevant factors shows the transferee forum to be “clearly more convenient”
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`than the plaintiff’s original choice, the court must order transfer. Id.
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`III.
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`ARGUMENT
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`The Court should transfer this case to the Austin Division because (1) Neo could have
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`originally filed this case in the Austin Division and (2) the Austin Division is clearly more
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`convenient than the Waco Division.
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`A.
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`Neo Could Have Filed This Case in the Austin Division
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`Considering that every fact Neo alleges in its First Amended Complaint in support of venue
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`in this District refers to places of business in the Austin Division, there can be no dispute that this
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`case “might have been brought” in the Austin Division, as opposed to the Waco Division. See
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`Mimedx, 2014 WL 12479284, at *1 (citing Volkswagen, 545 F.3d at 312).
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`B.
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`The Austin Division Is Clearly More Convenient Than the Waco Division
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`Analyzing the Fifth Circuit’s enumerated factors (adopted for intra-district transfers in
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`Radmax) demonstrates that litigating this case in the Austin Division would be clearly more
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`convenient than litigating in the Waco Division. In Datascape, this Court addressed a case
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`involving the same venue facts: a patent owner with no ties to the Waco Division sued Dell in the
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`Waco Division. This Court found that “the relevant convenience weigh[ed] heavily in favor of
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`transfer.” Datascape, 2019 WL 4254069, at *2 (emphasis added). The facts that supported
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`transfer then, such as Dell’s large facilities, headquarters, and operations in the Round Rock/Austin
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`area, its relevant witnesses in the area, and the strong local interest in the case, are equally true
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`today. Thus, the Austin Division is a clearly more convenient venue under the Fifth Circuit’s
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`multi-factor test, as outlined in the following chart:
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`Factor
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`More Convenient Venue
`
`Relative ease of access to sources of proof
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`Austin Division
`
`Availability of compulsory process to secure the
`attendance of witnesses
`
`Cost of attendance for willing witnesses
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`All other practical problems that make trial of a case
`easy, expeditious and inexpensive
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`Neutral
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`Austin Division
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`Austin Division
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`Administrative difficulties flowing from court congestion
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`Neutral
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`5
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`Case 6:21-cv-00024-ADA Document 25 Filed 05/28/21 Page 10 of 18
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`Factor
`
`More Convenient Venue
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`Local interest in having localized interests decided at home
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`Austin Division
`
`Familiarity of the forum with the law that will govern the
`case
`
`Avoidance of unnecessary problems of conflict of laws or
`in the application of foreign law
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`Neutral
`
`Neutral
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`Under these facts, transfer is warranted: four factors favor transfer; four factors are neutral;
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`and no factors support litigating in the Waco Division. See Datascape *1-2; see also Radmax, 720
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`F.3d at 290 (confirming that it was an “extraordinary error” to decline transfer where three factors
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`supported transfer, five were neutral, and “not a single relevant factor favors the plaintiffs’ chosen
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`venue” (brackets omitted) (quoting Volkswagen, 545 F.3d at 318)); Mimedx, 2014 WL 12479284,
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`at *3 (ordering transfer where four factors favored transfer, four were neutral, and none favored
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`plaintiff’s choice of venue).
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`1.
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`Factors Favoring Transfer
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`No party has any connection to the Waco Division. To the extent there are relevant
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`documents and witnesses in this District, they are all in the Austin Division. Accordingly, the
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`relative ease of access to sources of proof, the cost of attendance for willing witnesses, other
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`practical issues, and Austin’s local interest in deciding this case all strongly favor transfer.
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`a)
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`Relative Ease of Access to Sources of Proof
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`The first factor considers the location of relevant evidence. “In patent infringement cases,
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`the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the
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`place where the defendant’s documents are kept weighs in favor of transfer to that location.”
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`10Tales, Inc., v. TikTok Inc., No. 6:20-CV-00810-ADA, 2021 WL 2043978, at *2 (W.D. Tex. May
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`21, 2021) (quoting In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020)). Moreover, as this
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`Court explained in Datascape, “the question is relative ease of access, not absolute ease of access.”
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`Datascape, *2 (emphasis in original); see also Mimedx, 2014 WL 12479284, at *2; Perry v.
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`Autocraft Invs., Inc., No. 4:13-CV-01959, 2013 WL 3338580, at *2 (S.D. Tex. July 2, 2013)
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`(“[A]lthough the inconvenience of obtaining sources of proof in the Galveston Division may be
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`slight, Houston’s relatively easier access to evidence favors transfer.”).
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`Dell’s relevant evidence and witnesses are primarily located in, or accessible from, Dell’s
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`headquarters in Round Rock and Austin. Sarkis Decl., ¶¶ 6-8. The most critical point is that none
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`of the relevant evidence is in the Waco Division. See McCloud v. McLinton Energy Grp., L.L.C.,
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`No. 5:14-cv-620-XR, 2014 WL 6388417, at *3 (W.D. Tex. Nov. 14, 2014) (“Although Plaintiffs
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`state that not ‘all’ the evidence is in Midland, certainly the bulk of it is there, and Plaintiffs point
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`to no evidence in San Antonio or within the San Antonio Division.”). Further, even if
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`electronically stored documents may be quickly shared between locations, 5th Circuit precedent
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`still requires courts to fully weigh the location of the stored documents. See 10Tales, 2021 WL
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`2043978, at *2 (failing to weigh location of electronically stored documents “would be particularly
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`egregious given that 10Tales failed to identify a single source of physical proof located in this
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`District.”). Accordingly, just as in Datascape, “access to sources of proof is relatively easier in
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`Austin than it is in Waco. This factor thus supports transfer.” Datascape at *2.
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`b)
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`Cost of Attendance for Willing Witnesses
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`The convenience of witnesses factor favors transfer to the Austin Division when a
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`significant number of the accused infringer’s relevant witnesses are located in the Austin area and
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`none is located in the Waco Division. Datascape, 2019 WL 4254069, at *2 (holding cost of
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`attendance favored transfer because Dell had “Austin employees who might serve as potential
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`witnesses” and “no employees located in the Waco Division who have any responsibilities related
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`to its [accused products]”). That is precisely the case here.
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`Dell has approximately 14,000 employees within the Austin Division, multiple of whom
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`are likely to have knowledge relevant to this litigation. Kennedy Decl., ¶¶ 7–10. For example,
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`many of Dell’s relevant design, development, and component procurement personnel are located
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`in the Austin Division, and none is located in the Waco Division. Id. Many of Dell’s relevant
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`marketing employees are also located in the Austin Division, and again, none are located in the
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`Waco Division. Id. To be more specific, at least the following Dell employees in the Austin
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`Division have information related to LTE, 4G, and 5G technology and products at issue:
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`Name
`
`Title
`
`Business Location – Place of
`Residence
`
`Reynaldo Garcia Consultant, Commodity Manager
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`Remote – Round Rock, Texas
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`Kevin McCann
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`Vice President, Consumer Client
`Engineering
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`Austin – Cedar Park, Texas
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`Mike Hareng
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`Director, Systems Development
`Engineering
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`Austin – Cedar Park, Texas
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`Omar Diaz
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`Consultant, Strategic Business
`Development
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`Austin – Round Rock, Texas
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`Steve Cho
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`Distinguished Engineer
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`Austin – Cedar Park, Texas
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`Danlu Huang
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`Consultant, Commodity Management
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`Remote – Cedar Park, Texas
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`Id.
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`Transferring to Austin will allow more of Dell’s relevant employees to participate in trial
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`or hearings without having to incur the burden of traveling over 160 miles roundtrip to/from Waco.
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`Transfer would also avoid needless expenses associated with transit and housing employees while
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`they are on-call for trial testimony. Trial in Austin would further minimize disruption by allowing
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`these witnesses to work at their regular offices during the day while they are on-call and waiting
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`to testify and by allowing them to stay home with their families.
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`Further, Neo has not indicated that any of its potential witnesses resides in Texas, much
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`less in the Waco Division. Thus, every Neo witness will have to leave work for extended periods
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`of time and incur expenses for transit and lodging regardless of whether the trial is held in Waco
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`or Austin. At the same time, trial in Austin would avoid these burdens for at least most (if not all)
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`of Dell’s witnesses, which will likely be the majority of all fact witnesses at trial. See Genentech,
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`566 F.3d at 1345 (“In patent infringement cases, the bulk of the relevant evidence usually comes
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`from the accused infringer.”).
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`This factor also favors holding trial in Austin when considering any relevant out-of-state
`
`witnesses. Austin has a major international airport that services numerous airlines and can
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`therefore accommodate out-of-state witnesses more easily than Waco. Frischhertz v. King, No.
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`19-cv-01017-SJH, 2019 WL 6606532, at *4 (W.D. Tex. Dec. 5, 2019) (holding that out-of-state
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`witnesses “would be more inconvenienced by traveling to Waco rather than Austin”). Further,
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`transfer to the Austin Division would afford any of Dell’s out-of-state witnesses the convenience
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`of working out of Dell’s Round Rock and Austin offices while being in Texas for trial.
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`c)
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`All other practical problems that make trial of a case easy,
`expeditious, and inexpensive
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`The fourth factor considers practical problems, speed, and expense. This case is still in its
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`earliest stages: Dell’s Answer is not due until June, and the Court has not yet held a Rule 16
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`Conference. Thus, there is no reason to expect that transferring the case to the Austin Division
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`would result in any meaningful delay that would counsel against doing so. See Radmax, 720 F.3d
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`at 289 (“[G]arden-variety delay associated with transfer is not to be taken into consideration when
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`ruling on a § 1404(a) motion to transfer.”); Mimedx, 2014 WL 12479284, at *2.
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`Moreover, Neo’s other nascent cases in the Waco Division (involving Apple and LG as
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`defendants) do not justify denying transfer. The Federal Circuit (applying Fifth Circuit law) has
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`expressly held that judicial economy considerations from related cases cannot “negate[] the
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`significance of having trial close to where most of the identified witnesses reside and where the
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`other convenience factors clearly favor.” In re Zimmer Holdings, Inc., 609 F.3d 1378, 1382 (Fed.
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`Cir. 2010). As the Federal Circuit explained in a later decision, overemphasis on co-pending suits
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`would “effectively inoculat[e] a plaintiff against convenience transfer under § 1404(a) simply
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`because it filed related suits against multiple defendants in the transferor district.” In re Google
`
`Inc., No. 2017-107, 2017 WL 977038, at *3 (Fed. Cir. Feb. 23, 2017) (nonprecedential). For this
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`reason, it is improper to weigh the judicial economy factor against transfer based on the existence
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`of any co-pending suits. Id.
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`Finally, the District-Wide Standing Order extending jury trials across the District expired
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`by its terms on April 30, 2021 and was not extended. As such, the resolution of this motion in this
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`recently filed lawsuit should not be impacted by concerns about the availability of jury trials in the
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`Austin Division. In fact, jury trials set to resume in the Austin Division in the next 30 days. See
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`https://www.txwd.uscourts.gov/judges-information/judges-calendars/#/austin/all-judges/30-days/
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`(jury trials set for June 14, 2021 in 19-CV-00737 and 18-CR-00410; jury trials set for June 21,
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`2021 in 18-CV-00422 and 19-CV-00940; jury trial set for June 22, 2021 in 17-CV-00687). The
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`conditions regarding Covid-19 in Texas continue to improve, including vaccine eligibility of all
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`Texans age twelve or older. Considering that trial in this case will not occur in 2021, there is a
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`reasonable expectation that trial will proceed in due course in the Austin Division
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`Case 6:21-cv-00024-ADA Document 25 Filed 05/28/21 Page 15 of 18
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`In view of the expected trial date in this case and the ongoing activity in the Austin
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`Division, it would not be appropriate to delay resolution of the merits of Dell’s Motion to Transfer
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`based on the previous closure of the Austin courthouse due to the now-expired District-Wide
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`Standing Order. Delaying the final resolution of this motion would run counter to “a principle
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`well-established in Fifth Circuit law: That district courts must give promptly filed transfer motions
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`‘top priority’ before resolving the substantive issues in the case.” In re TracFone Wireless, Inc.,
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`No. 2021-118, 2021 WL 865353, at *2 (Fed. Cir. Mar. 8, 2021) (nonprecedential) (citing In re
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`Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003)); see also In re SK hynix Inc., 835 F. App’x
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`600, (Mem)–601 (Fed. Cir. Feb. 1, 2021) (nonprecedential). “In the context of transfer of venue
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`motions, lengthy delays have the ability to frustrate 28 U.S.C. § 1404(a)’s intent to prevent the
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`waste of time, energy, and money and to protect litigants, witnesses and the public against
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`unnecessary inconvenience and expense, when defendants are forced to expend resources litigating
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`substantive matters in an inconvenient venue while a motion to transfer lingers unnecessarily on
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`the docket.” In re Google Inc., No. 2015-138, 2015 WL 5294800, at *1 (Fed. Cir. July 16, 2015)
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`(nonprecedential) (internal quotation marks and citations omitted) (quoting Van Dusen v. Barrack,
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`376 U.S. 612, 616 (1964)). In sum, the status of the Austin Division is not a barrier to this Court
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`granting Dell’s motion, especially considering the changing conditions in the Austin Division.
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`Accordingly, this factor also strongly weighs in favor of transfer.
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`d)
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`Local interest in having localized interests decided at home
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`Finally, a division has greater local interest in adjudicating an action when the accused
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`infringer is located within that division. Datascape, 2019 WL 4254069, at *5; Mimedx, 2014 WL
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`12479284 at *3. The Austin Division has a considerable interest in deciding this case, which
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`affects one of its largest corporate residents. For more than thirty years, Dell has chosen to locate
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`its principal place of business in the Austin Division. Because the accused infringer is based in
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`Case 6:21-cv-00024-ADA Document 25 Filed 05/28/21 Page 16 of 18
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`Austin, the residents of the Austin Division will have a significant local interest in the outcome of
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`this case. And, the local interest of the Austin Division is far more significant than that of any
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`other division in this District. See Mimedx, 2014 WL 12479284, at *3 (confirming in patent case
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`that “Defendants and their employees are local to the San Antonio area. The ultimate outcome of
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`this suit likely affects local San Antonio interests more acutely than local Austin interests.”); see
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`also In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1338 (Fed. Cir. 2009) (“[I]f there are
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`significant connections between a particular venue and the events that gave rise to a suit, [the local
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`interest] factor should be weighed in that venue’s favor.”). The Waco Division does not have a
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`local interest that is apparent from the First Amended Complaint or the litigation in this case to
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`date.
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`Neo’s choice to file suit in the Waco Division also does not change the local interest
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`analysis. A plaintiff’s choice of forum is given minimal deference in the context of intra-district
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`transfers. Radmax, 720 F.3d at 289 (citing 17 James WM. Moore et al., Moore’s Federal Practice
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`§ 111.21[2], at 111–55 (3d ed. 2013)); In re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir.
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`2008) (“[T]he district court gave too much weight to [plaintiff’s] choice of venue . . . . Fifth Circuit
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`precedent clearly forbids treating the plaintiff’s choice of venue as a distinct factor in the § 1404(a)
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`analysis.”). This is particularly true here because Neo has already chosen to sue in a District with
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`which it has no relevant connections. See Wet Sounds, Inc. v. Audio Formz, LLC, No. 17-cv00141-
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`AWA-LY, 2017 WL 4547916, at *3 (W.D. Tex. Oct. 11, 2017) (“[T]he Court will not give
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`deference to a plaintiff’s choice of forum when the plaintiff is not a residence of the chosen forum
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`and the underlying facts of the case did not occur in the chosen forum[.]”). Thus, local interest
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`strongly favors transfer.
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`Case 6:21-cv-00024-ADA Document 25 Filed 05/28/21 Page 17 of 18
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`2.
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`Neutral Factors
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`The remaining factors are neutral and do not weigh for or against transfer. The compulsory
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`subpoena power for unwilling third-party witnesses is the same for both the Austin and Waco
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`Divisions. Both Divisions are familiar with and equally capable of applying federal patent laws.
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`Regardless of the Division, neither would present a conflict of law or require the application of
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`foreign law. And to Dell’s knowledge, there are no administrative difficulties flowing from court
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`congestion (especially since trial should occur well after the Austin courthouse reopens).
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`IV.
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`CONCLUSION
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`The Waco Division has no ties to this lawsuit, and thus this case should be transferred to
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`the Austin Division, where Dell is headquartered and maintains its principal places of business.
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`Dell respectfully asks that the Court grant this Motion.
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`Dated: May 28, 2021
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`Respectfully submitted,
`
`/s/ Roger Fulghum
`BAKER BOTTS LLP
`Roger Fulghum
`State of Texas Bar No. 00790724
`910 Louisiana Street
`Houston, Texas 77002
`Telephone: 713.229.1707
`Facsimile: 713.229.2707
`Email: roger.fulghum@bakerbotts.com
`
`Deron R. Dacus
`Texas Bar No. 00790553
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas 75701
`903-705-1117 (phone)
`903-581-2543 (fax)
`E-mail: ddacus@dacusfirm.com
`
`ATTORNEYS FOR DEFENDANTS DELL
`TECHNOLOGIES INC. AND DELL INC.
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