IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DATASCAPE, LTD.,
`Plaintiff,
`
`V.
`
`DELL TECHNOLOGIES, INC.,
`DELL, INC., and EMC
`CORPORATION,
`Defendants.
`
`§
`§
`§
`
`§
`§
`§
`§
`§
`
`Case No. 6:19-CV-00129-ADA
`
`ORDER GRANTING INTRA-DISTRICT TRANSFER OF VENUE
`
`Came on for consideration this date the Motion of Defendants Dell Technologies, Inc.,
`
`Dell, Inc., and EMC Corporation (collectively, "Dell" or "Dell Defendants") for intra-
`
`district transfer from the Waco, Texas Division to the Austin, Texas Division.
`
`Defendants filed their Motion (Dkt. 36) on May 1, 2019. Plaintiff filed a Response
`
`(Dkt. 37) on May 8, 2019. Defendants filed a Reply (Dkt. 40) on May 15, 2019. The
`
`Court has carefully considered the Motion, all responsive pleadings, and the case
`
`record, and is of the opinion that the Motion is meritorious and should be GRANTED.
`
`Defendants contend that this case should have been filed in Austin, Texas,
`
`rather than in Waco, and have moved to transfer it pursuant to 28 U.S.C. § 1404(a).
`See 28 U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in the interest
`
`of justice, a district court may transfer any civil action to any other district or division
`
`where it might have been brought. .
`
`. ."). Analyzing an analogous motion seeking intra-
`
`1
`
`IGT EXHIBIT 2026
`Zynga v. IGT, IPR2022-00199
`
`

`

`district transfer from Marshall to Tylertwo cities even closer to each other than Austin
`
`is to Wacothe Fifth Circuit stated:
`
`A motion to transfer venue pursuant to § 1404(a) should be granted if "the
`movant demonstrates that the transferee venue is clearly more convenient,"
`taking into consideration (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".
`
`In re Radmax, Ltd., 720 F.3d 285, 288-90 (5th Cir. 2013) (quoting In re VolkswagenS of
`
`Am., Inc. ("Volkswagen 11,9, 545 F.3d 304, 311 (5th Cir. 2008) (en bane)). The Court finds
`
`that factors (1), (3), (4), and (6) favor transfer; factors (2), (5), (7), and (8) are neutral; and
`
`no factor favors the retention of this case in Waco. See id. at 290 (holding that the district
`
`court clearly abused its discretion by denying transfer where three factors favored
`
`transfer, five were neutral, and no factor favored the plaintiffs chosen venue).
`
`The Court has considered Plaintiffs argument that the case should remain in
`
`Waco because Austin, Texas, is the hometown of the Dell Defendants. The Court agrees
`
`with Defendants that this "hometown" factor is not to be given much, if any, weight in
`
`determining whether a transfer would be appropriate. Of much greater importance is
`
`whether Plaintiff has articulated a reason or reasons under the § 1404(a) factors that
`
`demonstrate Defendants' failure to meet their burden. But in response to the evidence
`
`offered by Defendants, Plaintiff proffers neither facts nor arguments sufficient to
`demonstrate why this case should remain in Waco. Mostif not allof the relevant
`connections in this case are to Austin rather than to Waco.
`
`2
`
`

`

`The Court agrees with Defendants that, overall, the relevant convenience
`
`weighs heavily in favor of transfer. As in Radmax, the § 1404(a) factor-analysis here
`
`indicates that that "movant [has] demonstrate[d] that the transferee venue is clearly
`
`more convenient." Radmax, 720 F.3d at 288 (emphasis added). The Court considers
`
`below the disputed factors.
`
`Relative ease of access to sources of proof. Dell has presented
`
`uncontroverted evidence of relevant sources of proof in Austin, including sales,
`
`marketing, and financial information related to the accused products. Defs.' Mot. Ex.
`
`1 ¶f 5, 7 (Dkt. 36-1) (Decl. of Julia England). Plaintiff failed to proffer or identifr any
`such sources in Waco. Moreover, Plaintiffs argument that this factor "only favors
`
`transfer when the bulk or majority of the evidence is located in the transferee
`
`district," Pl.'s Resp. 3 (internal quotations omitted), is insupportable under the
`
`controlling law. As confirmed in Radmax and Volkswagen II, "the question is relative
`
`ease of access, not absolute ease of access." Radmax, 720 F.3d at 288 (citing
`
`Volkswagen II, 545 F.3d at 316). As Dell demonstrates, access to sources of proof is
`
`relatively easier in Austin than it is in Waco. This factor thus supports transfer.
`
`Cost of attendance for willing witnesses. Data Scape complains that Dell
`
`"cherry-pick[ed]" only witnesses in Austin and failed to identify their relevance to the
`
`case. Pl.'s Resp. 6 (Dkt. 37). The Court has carefully reviewed the evidence that Dell
`
`proffered, including a list of Austin employees who might serve as potential witnesses
`
`in this case. According to Defendants, these employees have "knowledge of Dell's
`
`marketing and sales of the accused products and their financial performance"key
`
`3
`
`

`

`issues Data Scape cites in its complaint as a basis for infringement and damages.
`
`Defs.' Mot. Ex. 1 ¶ 5 (Dkt. 36-1) (Decl. of Julia England). In contrast, Data Scape has
`
`identified no such witnesses in Waco. Dell "has no employees located in the Waco
`
`Division who have any responsibilities related to its Data Domain or RecoverPoint
`
`products." Id. ¶ 4. This factor thus supports transfer.
`
`Availability of compulsory process. Data Scape's contention that the Waco
`
`Division is more convenient because there is a Dell employee located in Dallas is
`
`unavailing. That argument is severely weakened by the fact that Dell proffered
`
`evidence that this single witness is in fact in the process of moving to Austin. Id. ¶ 4
`
`n.1. To defeat a Motion to Transfer such as this one requires more than an attorney's
`
`opinion that there might be other witnesses for whom Waco would be a better forum
`
`for compulsory service. See Kimberly-Clark Worldwide, Inc. v. First Quality Baby
`
`Prods., LLC, No. 309-CV-00488, 2009 WL 2634860, at *6 (N.D. Tex. Aug. 26, 2009)
`
`(finding factor neutral where party had "not specifically identified a single witness by
`
`name and address"). Furthermore, the Court agrees with Defendants that the
`
`compulsory process factor focuses on unwilling, non-party witnesses. See Carruth v.
`
`Michot, No. 15-CA-00189, 2015 WL 6506550, at *9 (W.D. Tex. Oct. 26, 2015)
`
`("Because party witnesses do not typically require compulsory process, the Court
`
`focuses on non-party witnesses."). As stated in Dell's Motion, and contrary to
`
`Plaintiffs argument, this factor accordingly remains neutral.
`
`Other practical problems. Data Scape argues that the co-pendency of three
`
`other actions in this Court involving at least some of the same asserted patents would
`
`4
`
`

`

`raise practical difficulties that urge against transfer, viz., consuming unnecessary
`
`additional judicial resources, requiring another court to address overlapping issues,
`
`and creating a risk of inconsistent rulings. P1.'s Resp. 7-8. But Data Scape also
`
`acknowledges that, "where the other transfer factors clearly favor transfer, the
`
`existence of co-pending litigation, by itself, should not preclude transfer." Id. at 9.
`
`That is the exact scenario presented in this case, where all the factors strongly favor
`
`litigating in Austin or are neutral. Plaintiff is correct that there are three other cases
`
`pending in Waco, two of which have transfer motions pending, and the third of which
`
`is stayed. But Plaintiff has filed at least ten other cases in district courts other than
`
`Waco as well as in the International Trade Commission. Therefore, Data Scape's
`
`concern that transfer would "requir[e] another court to address overlapping issues,
`
`and would create a risk of inconsistent rulings" is without merit. Id. at 8. Since both
`
`Parties have assented to this Court's continued control of the proceedings, there is
`
`little if any risk of judicial waste or inefficiency associated with transfer.
`
`Local interest in having localized interests decided at home. The Court
`
`turns next to Data Scape's argument that Austin cannot have an interest in this
`
`litigation because Dell has asserted in another case that California has an interest in
`
`Dell's Data Domain products. Id. at 9. The Court finds this argument unpersuasive.
`
`The Court accepts that California also has an interest in this casebecause, as
`
`explained in Dell's declaration, Dell has relevant operations in Austin, California,
`
`Massachusetts, and Israel. Defs.' Mot. Ex. 1 ¶J 5-7 (Dkt. 36-1) (Decl. of Julia
`England). There is no rule that only a single forum can have a local interest in
`
`5
`
`

`

`deciding a case. Instead, the local interest factor, like all § 1404 factors, is concerned
`
`with the relative interests between the transferee and transferor forums. See Mimedx
`
`Grp. v. Tex. Human Biologics, Ltd., No. 1:14-CV-464-LY, 2014 WL 12479284, at *3
`
`(W.D. Tex. Aug. 12, 2014) ("The ultimate outcome of this suit likely affects local San
`
`Antonio interests more acutely than local Austin interests." (emphasis added)). The
`
`outcome of the instant action likely affects local Austin interests more acutely than
`
`local Waco interests. The local interest factor thus strongly favors transfer.
`
`It is therefore
`
`ORDERED that Defendants' Motion for Intra-District Transfer of Venue to
`
`the Austin Division of the Western District of Texas (Dkt. 36), filed May 1, 2019, is
`
`GRANTED. It is further
`
`ORDERED that the above-styled case be TRANSFERRED to the Austin
`
`Division but remain on the docket of United States District Judge Alan D Aibright.
`
`SIGNED on this the 7th day of June 2019.
`
`LLDX\
`
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`