Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 1 of 19
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS,
`WACO DIVISION
`
`XR COMMUNICATIONS, LLC, dba
`VIVATO TECHNOLOGIES,
`
`Plaintiff,
`
`-vs.-
`
`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and EERO LLC,
`
`Defendants.
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`The Honorable
`Alan D. Albright
`
`No.: 6:21-cv-00619-ADA
`
`JURY TRIAL DEMANDED
`
`DEFENDANT EERO LLC’S MOTION TO
`DISMISS FOR IMPROPER VENUE OR, ALTERNATIVELY,
`TO TRANSFER TO THE NORTHERN DISTRICT OF CALIFORNIA
`
`
`

`

`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 2 of 19
`
`TABLE OF CONTENTS
`
`INTRODUCTION -------------------------------------------------------------------------------------------- 1
`
`FACTUAL BACKGROUND ------------------------------------------------------------------------------- 1
`
`I.
`
`II.
`
`THE COMPLAINT’S VENUE ALLEGATIONS ------------------------------------- 1
`
`EERO’S LACK OF PRESENCE IN TEXAS------------------------------------------- 2
`
`LEGAL STANDARD ---------------------------------------------------------------------------------------- 3
`
`I.
`
`II.
`
`MOTION TO DISMISS UNDER 12(b)(3) --------------------------------------------- 3
`
`THE PATENT VENUE STATUTE REQUIREMENTS ARE CLEAR ------------ 3
`
`III.
`
`TRANSFER UNDER 28 U.S.C. § 1406(A) -------------------------------------------- 5
`
`ARGUMENT -------------------------------------------------------------------------------------------------- 6
`
`I.
`
`THE WESTERN DISTRICT OF TEXAS IS AN IMPROPER VENUE
`FOR EERO AND THE COMPLAINT AGAINST EERO
`SHOULD BE DISMISSED --------------------------------------------------------------- 6
`
`A.
`
`B.
`
`eero Does Not Reside in the Western
`District of Texas -------------------------------------------------------------------- 6
`
`eero Does Not Have a Regular and Established Place of
`Business in the Western District of Texas -------------------------------------- 7
`
`1.
`
`2.
`
`3.
`
`eero Does Not Have a Physical Place in
`the Western District of Texas ------------------------------------------- 7
`
`eero Does Not Have a Regular and
`Established Place of Business in This District ------------------------ 8
`
`Any Locations in the Western District
`Are Not eero’s Place of Business --------------------------------------- 9
`
`II.
`
`IN THE ALTERNATIVE, THIS COURT SHOULD TRANSFER
`THIS CASE TO THE NORTHERN DISTRICT OF CALIFORNIA -------------- 11
`
`CONCLUSION ----------------------------------------------------------------------------------------------- 14
`
`
`
`
`
`
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`
`
`-i-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 3 of 19
`
`Cases:
`
`Page(s):
`
`TABLE OF AUTHORITIES
`
`Action Indus., Inc. v. US. Fid. & Guar. Co.,
`358 F.3d 337 (5th Cir. 2004) ----------------------------------------------------------------------------- 5
`
`Affinity Labs of Texas, LLC v. Blackberry Ltd.,
`No. 6:13-CV-362, 2014 WL 10748106 (W.D. Tex. June 11, 2014) ------------------------------- 13
`
`Am. Cyanamid Co. v. NOPCO Chem. Co.,
`388 F.2d 818 (4th Cir. 1968) ----------------------------------------------------------------------------- 5
`
`Ambraco, Inc. v. Bossclip B.V.,
`570 F.3d 233 (5th Cir. 2009) ----------------------------------------------------------------------------- 3
`
`Blue Spike, LLC v. Caterpillar, Inc.,
`No. 6:16-CV-01361-RWS, 2017 WL 4129321 (E.D. Tex. Sept. 19, 2017) ------------------- 3, 10
`
`Blue Spike, LLC v. Nook Digital, LLC,
`No. 6:16-CV-1361-RWS-JDL, 2017 WL 3263871 (E.D. Tex. July 28, 2017) ------------------ 10
`
`Braspetro Oil Servs. Co. v. Modec (USA), Inc.,
`240 F. App’x 612 (5th Cir. 2007) ------------------------------------------------------------------------ 3
`
`Correct Transmission LLC v. ADTRAN, Inc.,
`No. 6:20-cv-00669-ADA, 2021 WL 1967985 (W.D. Tex. May 17, 2021) ----------------- passim
`
`CUPP Cybersecurity LLC v. Symantec Corp.,
`No. 3:18-CV-01554-M, 2019 WL 1070869 (N.D. Tex. Jan. 16, 2019) --------------------------- 11
`
`DataQuill, Ltd. v. Apple Inc.,
`No. A-13-CA-706-SS, 2014 WL 2722201 (W.D. Tex. June 13, 2014) --------------------------- 13
`
`EMED Techs. Corp. v. Repro-Med Sys., Inc.,
`No. 2:17-CV-728-WCB-RSP, 2018 WL 2544564 (E.D. Tex. June 4, 2018) ----------------- 6, 11
`
`In re Cray Inc.,
`871 F.3d 1355 (Fed. Cir. 2017) ------------------------------------------------------------------- passim
`
`In re Radmax Ltd.,
`720 F.3d 285 (5th Cir. 2013) ----------------------------------------------------------------------------- 5
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ----------------------------------------------------------------------------- 5
`
`In re Volkswagen of America, Inc.,
`545 F.3d 304, 312 (5th Cir. 2004) (en banc) ----------------------------------------------------------- 5
`
`-ii-
`
`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 4 of 19
`
`Koss Corp. v. Skullcandy, Inc.,
`No. 6-20-CV-00664-ADA, 2021 WL 1226557 (W.D. Tex. Mar. 31, 2021) --------------- passim
`
`Magnacoustics, Inc. v. Resonance Tech. Co.,
`No. 97-1247, 1997 WL 592863 (Fed. Cir. Sept. 25, 1997) ----------------------------------- 3, 9, 10
`
`MasterObjects, Inc. v. Amazon.com, Inc.,
`No. 20 CV 3478 (PKC), 2020 WL 6075528 (S.D.N.Y. Oct. 15, 2020) --------------------------- 11
`
`Nat’l Steel Car Ltd. v. Greenbrier Cos., Inc.,
`No. 6:19-cv-00721-ADA, 2020 WL 4289388 (W.D. Tex. Jul. 27, 2020) ---------------------- 5, 9
`
`Phillips v. Baker,
`121 F.2d 752 (9th Cir. 1941) ----------------------------------------------------------------------------- 9
`
`TC Heartland LLC v. Kraft Food Grp. Brands LLC,
`137 S. Ct. 1514 (2017)------------------------------------------------------------------------------- 3, 4, 6
`
`Vocalife LLC v. Amazon.com, Inc.,
`No. 2:19-CV-00123-JRG, 2019 WL 6345191 (E.D. Tex. Nov. 27, 2019) ----------------------- 11
`
`Westech Aerosol Corp. v. 3M Co.,
`927 F.3d 1378 (Fed. Cir. 2019) -------------------------------------------------------------------------- 4
`
`XR Communications, LLC, v. Ruckus Wireless, Inc., et al.,
`No. 18-CV-01992-WHO, 2021 WL 3918136 (N.D. Cal. Sept. 1, 2021) ------------------------- 12
`
`Statutes:
`
`28 U.S.C. § 1400 --------------------------------------------------------------------------------------- passim
`
`28 U.S.C. § 1406 --------------------------------------------------------------------------------------- 1, 5, 13
`
`28 U.S.C. § 1440 ---------------------------------------------------------------------------------------------- 4
`
`Rules:
`
`Fed. Rule Civ. P. 12 ------------------------------------------------------------------------------------ 1, 5, 13
`
`Miscellaneous:
`
`14D Wright & Miller, Fed. Prac. & Pro., § 3823 -------------------------------------------------------- 10
`
`
`
`
`
`-iii-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 5 of 19
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`INTRODUCTION
`
`Defendant eero LLC (“eero”) respectfully moves to dismiss for improper venue under Rule
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`12(b)(3) and 28 U.S.C. § 1406(a), or, alternatively, to transfer venue to the Northern District of
`
`California. Proper venue in a patent infringement suit is “in the judicial district where the
`
`defendant resides” or “where the defendant has committed acts of infringement and has a regular
`
`and established place of business.” 28 U.S.C. § 1400(b). Under either part of the statute, venue
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`in the Western District of Texas is improper as to eero.
`
`FACTUAL BACKGROUND
`THE COMPLAINT’S VENUE ALLEGATIONS
`
`I.
`Plaintiff XR Communications LLC d/b/a Vivato Technologies (“plaintiff” or “Vivato”)
`
`filed its complaint in this Court on June 16, 2021, against defendants Amazon.com, Inc.,
`
`Amazon.com Services LLC (collectively, the “Amazon defendants”), and eero, alleging
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`infringement of United States Patent Nos. 10,594,376 and 10,715,235. (D.I. 1, Compl. ¶¶ 16-18,
`
`23-26, 44-46.) Vivato’s complaint states that venue is proper against all three defendants in the
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`Western District of Texas because:
`
`Defendants have a permanent and continuous presence in, have
`committed acts of infringement in, and maintain regular and
`established places of business in this district. Defendants have
`committed acts of direct and indirect infringement in this judicial
`district including using and purposefully transacting business
`involving the Accused Products in this judicial district such as by
`sales to one or more customers in the State of Texas including in the
`Western District of Texas, and maintaining regular and established
`places of business in this district, including, for example, their
`Amazon Tech Hub located at 11501 Alterra Parkway, Austin, TX.
`
`
`(Id. ¶ 23.)
`
`Specific to eero, Vivato’s complaint alleges that eero has a principal place of business in
`
`California and is incorporated in Delaware. (D.I. 1, Compl. ¶ 18.) Vivato’s complaint further
`
`-1-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 6 of 19
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`states “[o]n information and belief” that eero was acquired by defendant Amazon in 2019 “and is
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`a wholly owned subsidiary of Amazon.” (Id.) Vivato’s complaint also identifies eero job listings
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`posted on an Amazon jobs website offering workers the ability to work from Austin or San
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`Francisco. (Id. ¶ 20 (citing job listing providing options for candidates to work in “Austin or SF
`
`[i.e. San Francisco]”).) Vivato’s complaint contains no other statements relating to proper venue
`
`in the Western District of Texas specific to eero.
`
`EERO’S LACK OF PRESENCE IN TEXAS
`
`II.
`eero is headquartered in San Francisco, California and was formed in Delaware.
`
`(Declaration of Dana Lindsay in Support of Defendant eero LLC’s Motion to Dismiss for Improper
`
`Venue or, Alternatively, to Transfer to the Northern District of California (“Lindsay Decl.”) ¶ 4.)
`
`eero designs, manufactures, and sells mesh-networking Wi-Fi systems through e-commerce
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`websites and retailers such as amazon.com, Best Buy, Fry’s Electronics, Crutchfield, Micro
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`Center, Abt, newegg.com, Dell, and B&H. (Id. ¶ 5.) eero was acquired by Amazon.com, Inc. in
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`2019 and is a subsidiary of Amazon.com, Inc. (Id. ¶ 6.) While subsidiaries of eero’s parent
`
`corporation Amazon.com, Inc. operate in a location known as an “Amazon Tech Hub” located at
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`11501 Alterra Parkway, Austin, Texas, that facility is not eero’s—eero itself has no employees
`
`and does not conduct business at that facility. (Id. ¶ 7.) As of the filing date of the complaint, eero
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`does not own any physical offices or lease any real estate or facilities in Texas. (Id. ¶ 12.)
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`Approximately 41 eero employees currently work remotely from home in Texas, and some
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`of those employees reside in this district. (Lindsay Decl. ¶ 8.) eero has no requirement or
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`expectation for these remote employees to stay in Texas—these employees are free to move and
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`work from any location. (Id.) eero’s product development, engineering, and sales and marketing
`
`functions are managed and run by teams in eero’s San Francisco headquarters. (Id. ¶ 10.) No
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`product engineering teams are present in Texas. (Id. ¶ 11.) eero does not represent that its
`
`-2-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 7 of 19
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`employees’ homes are places where eero conducts business, and eero does not place signage, or
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`solicit customer visits, at its employees’ residences. (Id. ¶¶ 13, 15.)
`
`LEGAL STANDARD
`MOTION TO DISMISS UNDER 12(b)(3)
`
`I.
`Under Federal Rule of Civil Procedure 12(b)(3), a court may dismiss a case when venue is
`
`“wrong” or “improper” in the forum where the case was filed. Koss Corp. v. Skullcandy, Inc., No.
`
`6-20-CV-00664-ADA, 2021 WL 1226557, at *1 (W.D. Tex. Mar. 31, 2021) (Albright, J.). When
`
`considering a motion to dismiss, the Court must accept all allegations in the plaintiff’s complaint
`
`as true and resolve all conflicts in favor of the plaintiff. Id. (citing Braspetro Oil Servs. Co. v.
`
`Modec (USA), Inc., 240 F. App’x 612, 615 (5th Cir. 2007)). However, the Court may consider
`
`evidence in the record beyond the facts alleged in the complaint and its admissible attachments.
`
`Id. (citing Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009)).
`
`Courts must also consider whether venue is proper with respect to each defendant. See
`
`Blue Spike, LLC v. Caterpillar, Inc., No. 6:16-CV-01361-RWS, 2017 WL 4129321, at *2 (E.D.
`
`Tex. Sept. 19, 2017) (citing Magnacoustics, Inc. v. Resonance Tech. Co., No. 97-1247, 1997 WL
`
`592863, at *1 (Fed. Cir. Sept. 25, 1997) (“[A]s firmly established by judicial decisions, in an action
`
`involving multiple defendants venue and jurisdiction requirements must be met as to each
`
`defendant.”)).
`
`THE PATENT VENUE STATUTE REQUIREMENTS ARE CLEAR.
`
`II.
`The Patent Venue Statute, 28 U.S.C. § 1400(b), is the “sole and exclusive provision
`
`controlling venue in patent infringement actions.” TC Heartland LLC v. Kraft Food Grp. Brands
`
`LLC, 137 S. Ct. 1514, 1519 (2017). In patent infringement cases, “the plaintiff has the burden of
`
`establishing proper venue under 28 U.S.C. § 1400(b).” Correct Transmission LLC v. ADTRAN,
`
`-3-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 8 of 19
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`Inc., No. 6:20-cv-00669-ADA, 2021 WL 1967985, at *2 (W.D. Tex. May 17, 2021) (Albright, J.)
`
`(citing Westech Aerosol Corp. v. 3M Co., 927 F.3d 1378, 1382 (Fed. Cir. 2019)).
`
`Under the Patent Venue Statute, venue is proper in a district “where the defendant resides,
`
`or where the defendant has committed [alleged] acts of infringement and has a regular and
`
`established place of business.” Skullcandy, 2021 WL 1226557, at *1 (quoting 28 U.S.C. §
`
`1440(b)). The Supreme Court defined residence for purposes of § 1400(b) as the defendant’s state
`
`of formation. TC Heartland, 137 S. Ct. at 1517. A defendant has a “regular and established place
`
`of business” in any district where (1) a defendant has a physical place, (2) the physical place is a
`
`regular and established place of business, and (3) the physical place is the place of the defendant.
`
`Skullcandy, 2021 WL 1226557, at *1 (citing In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017)).
`
`As the Court has explained:
`
`A “place” requires a “building or part of a building set apart for any
`purpose” or “quarters of any kind” where business is conducted.
`“Regular” indicates a steady, uniform, orderly, and methodical
`manner of business operations. “Established” denotes that the place
`of business is settled certainly or fixed permanently. Courts should
`consider whether the defendant lists the place of business on its
`website or other directory, or whether the defendant’s name appears
`on the building’s sign. Even so, “the fact that the defendant
`advertised the place as its place of business or has an office in that
`place is not sufficient to establish venue.” “The defendant must
`actually engage in business from that location.”
`
`Id. (quoting Cray, 871 F.3d at 1362-64).
`
`That a company’s employees work from their homes within a district does not establish
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`that venue is proper in that district as to their employer. “For purposes of § 1400(b), it is of no
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`moment that an employee may permanently reside at a place or intend to conduct his or her
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`business from that place for present and future employers.” Cray, 871 F.3d at 1365. “The statute
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`clearly requires that venue be laid where ‘the defendant has a regular and established place of
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`business,’ not where the defendant’s employee owns a home in which he carries on some of the
`
`-4-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 9 of 19
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`work that he does for the defendant.” Id. (citing Am. Cyanamid Co. v. NOPCO Chem. Co., 388
`
`F.2d 818, 820 (4th Cir. 1968)). Instead, the facts must show that home is the place of the defendant.
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`ADTRAN, 2021 WL 1967985, at **3-4; see Cray, 871 F.3d at 1365.
`
`III. TRANSFER UNDER 28 U.S.C. § 1406(A)
`If a court finds venue is improper, then the court must dismiss, or, in the alternative, “if it
`
`be in the interest of justice, transfer such case to any district or division in which it could have
`
`been brought.” Nat’l Steel Car Ltd. v. Greenbrier Cos., Inc., No. 6:19-cv-00721-ADA, 2020 WL
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`4289388, at *3 (W.D. Tex. Jul. 27, 2020) (citing 28 U.S.C. § 1406(a)). Thus, in assessing whether
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`transfer is appropriate, the court must determine whether the transferee venue is one in which the
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`case could have been filed. ADTRAN, 2021 WL 1967985, at *2 (citing 28 U.S.C. §1406(a); Fed.
`
`R. Civ. P. 12(b)(3)). This further involves analyzing whether transfer would promote the interest
`
`of justice and/or the convenience of the parties and witnesses.1 Id. (citing In re Radmax Ltd., 720
`
`F.3d 285, 288 (5th Cir. 2013); In re Volkswagen of America, Inc., 545 F.3d 304, 312, 314 (5th Cir.
`
`2004) (en banc)). “Courts faced with the choice between dismissal and transfer frequently consider
`
`factors such as any possible statute of limitations issues, whether the plaintiff’s claim appears to
`
`have any significant prospect of success, and whether transferring the case rather than dismissing
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`it would disserve judicial economy.” EMED Techs. Corp. v. Repro-Med Sys., Inc., No. 2:17-CV-
`
`
`1 The Fifth Circuit has held that “[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.” Id. (citing
`Action Indus., Inc. v. US. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)). Private 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.” Id.
`(citing In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)). 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. However, these factors need only be considered when two venues are being evaluated
`where each venue has been determined to be proper.
`
`-5-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 10 of 19
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`728-WCB-RSP, 2018 WL 2544564, at *5 (E.D. Tex. June 4, 2018) (J. Bryson sitting by
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`designation).
`
`ARGUMENT
`
`This Court should dismiss this case for improper venue because eero does not reside in or
`
`have a regular and established place of business in the Western District of Texas, and the sole
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`alleged basis for venue, the Amazon defendants’ alleged presence in Austin, cannot be imputed to
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`eero. Alternatively, this Court should transfer this case to the Northern District of California,
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`where it could have been brought against eero and each of the other two defendants, and where
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`litigating this action would be in the interests of justice and convenient for the parties and the
`
`witnesses.
`
`I.
`
`THE WESTERN DISTRICT OF TEXAS IS AN IMPROPER
`VENUE FOR EERO AND THE COMPLAINT AGAINST EERO
`SHOULD BE DISMISSED.
`eero Does Not Reside in the Western
`A.
`District of Texas.
`
`The first prong of the Patent Venue Statute focuses on where the defendant resides. 28
`
`U.S.C. § 1400(b). The Supreme Court defined residence for purposes of § 1400(b) as the
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`defendant’s state of formation. TC Heartland, 137 S. Ct. at 1517. Vivato has not alleged that eero
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`resides in this district, nor does it allege that eero is incorporated in Texas. Instead, the complaint
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`alleges that eero is a “Delaware limited liability company with a principal place of business at 660
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`3rd Street, 4th Floor, San Francisco, CA 94107.” (D.I. 1, Compl. ¶ 18.) As a Delaware company,
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`eero is a resident of Delaware; eero does not reside in Texas. ADTRAN, 2021 WL 1967985, at *3
`
`(citing TC Heartland, 137 S. Ct. at 1517). As such, accepting all allegations in Vivato’s complaint
`
`as true, Vivato has not established proper venue for eero under the first part of the Patent Venue
`
`Statute.
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`-6-
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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 11 of 19
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`B.
`
`eero Does Not Have a Regular and Established Place of
`Business in the Western District of Texas.
`
`The second part of the Patent Venue Statute focuses on whether the defendant committed
`
`alleged acts of infringement2 and has a regular and established place of business in the District.
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`28 U.S.C. § 1400(b); ADTRAN, 2021 WL 1967985, at *3. Vivato has not established that eero has
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`a regular and established place of business in the Western District of Texas. For eero to have a
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`“regular and established place of business,” plaintiff must prove three things: (1) that eero has a
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`“physical place in the district,” (2) that the physical place is a “regular and established place of
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`business,” and (3) that the physical place is “the place of the defendant.” ADTRAN, 2021 WL
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`1967985, at *3 (citing Cray, 871 F.3d at 1360); Skullcandy, 2021 WL 1226557, at *1 (citing Cray,
`
`871 F.3d at 1360).
`
`1.
`
`eero Does Not Have a Physical Place in
`the Western District of Texas.
`
`Vivato’s complaint does not allege that eero owns or leases, or exercises other attributes of
`
`possession or control, over any real property in the Western District of Texas. And Vivato
`
`cannot—as of the filing of this action, eero was not a party to any real estate leases and did not
`
`own any facilities in Texas. (Lindsay Decl. ¶ 12.) Vivato instead improperly conflates a facility
`
`of the Amazon defendants with eero by stating “Defendants also own, maintain, and hire workers
`
`in the Amazon Tech Hub located at 11501 Alterra Parkway, Austin, TX, in order to make, use,
`
`distribute, sell, or offer for sale certain accused products in Austin.” (D.I. 1, Compl. ¶ 22.) But
`
`eero does not own, lease, or control the Amazon Tech Hub. (Lindsay Decl. ¶ 7.) eero employees
`
`do not work at the Amazon Tech Hub. (Id.) That eero’s parent corporation has a facility in Austin
`
`is insufficient to establish the physical place requirement as to eero, as explained below.
`
`
`2 eero denies that it has infringed any valid claim of the patents-in-suit, but it does not ask the
`Court to resolve that issue on a motion to dismiss.
`
`-7-
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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 12 of 19
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`Vivato’s complaint does not allege any other physical location in Texas tied to eero. To
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`the extent Vivato might argue that eero employee homes in Texas satisfy this requirement, its
`
`complaint has not so alleged. Regardless, eero does not own, lease, or control any of its
`
`employees’ homes, as discussed in greater detail in Part I(B)(3) below. (Id. ¶ 13.) See Cray, 871
`
`F.3d at 1363 (“Relevant considerations include whether the defendant owns or leases the place, or
`
`exercises other attributes of possession or control over the place.”).
`
`Vivato’s complaint fails to plead proper venue because it has not alleged or established that
`
`eero, specifically and apart from the other defendants, has a “physical place in the district.”
`
`ADTRAN, 2021 WL 1967985, at *3; Skullcandy, 2021 WL 1226557, at *1. Because this prong of
`
`the test is not satisfied, eero’s motion to dismiss should be granted.
`
`2.
`
`eero Does Not Have a Regular and
`Established Place of Business in This
`District.
`
`Vivato’s complaint also does not contain any allegations specific to eero that eero has a
`
`“regular and established place of business” in the Western District of Texas. Again, Vivato’s
`
`complaint conflates the Amazon defendants with eero by stating: “By registering to conduct
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`business in Texas and regularly conducting business in these facilities, Defendants maintain a
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`permanent and continuous presence, and a regular and established place of business, in the Western
`
`District of Texas.” (D.I. 1, Compl. ¶ 20.) This is incorrect with respect to eero. As described
`
`above, eero has no facilities where it conducts business in the Western District of Texas. (Lindsay
`
`Decl. ¶ 12.) The Amazon Tech Hub, the sole location in Austin described in Vivato’s complaint,
`
`is not a location where eero’s business is conducted, regularly or otherwise. (Id. ¶ 7.)
`
`While some eero employees work from home in Texas (Lindsay Decl. ¶ 8), Vivato’s
`
`complaint has not alleged that these homes can satisfy the “regular and established place of
`
`business” requirement of the Patent Venue Statute. eero employee homes are not a “regular and
`
`-8-
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`

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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 13 of 19
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`established” place of business of eero. Skullcandy, 2021 WL 1226557, at *1 (“‘Regular’ indicates
`
`a steady, uniform, orderly, and methodical manner of business operations. ‘Established’ denotes
`
`that the place of business is settled certainly or fixed permanently.”). eero is not aware of any
`
`business directory or website where eero employee home addresses are listed as a place of business
`
`for eero. Id. at 2 (“Courts should consider whether the defendant lists the place of business on its
`
`website or other directory, or whether the defendant’s name appears on the building’s sign.”);
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`Lindsay Decl. ¶12. eero has not authorized, sanctioned, or encouraged its employees to place eero
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`signs on their private homes. (Lindsay Decl. ¶ 13.) Even if such instances had occurred at
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`employee homes, such activity would be “sporadic activity” and insufficient for venue. See Nat’l
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`Steel Car, 2020 WL 4289388, at *5 (citing Cray, 871 F.3d at 1362; Phillips v. Baker, 121 F.2d
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`752, 756 (9th Cir. 1941)). For example, eero does not and could not prevent an employee from
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`selling his or her home and moving elsewhere outside this district. (Lindsay Decl. ¶ 14.)
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`Therefore, Vivato has failed to establish that eero has a “regular and established place of
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`business” in this District. See Cray, 871 F.3d at 1363. As a result, venue is improper against eero
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`in the Western District of Texas under this second prong of the test as well.
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`3.
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`Any Locations in the Western District
`Are Not eero’s Place of Business.
`
`Vivato’s complaint further fails to allege that the sole physical location in the Western
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`District of Texas identified in the complaint belongs to eero. As explained above, Vivato’s
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`complaint improperly conflates eero with the Amazon defendants. Magnacoustics, 1997 WL
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`592863, at *1 (“[A]s firmly established by judicial decisions, in an action involving multiple
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`defendants venue and jurisdiction requirements must be met as to each defendant.”). The Amazon
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`Tech Hub described in Vivato’s complaint (D.I. 1, Compl. ¶ 22) is not eero’s place of business.
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`(Lindsay Decl. ¶ 7.) “[T]he courts ordinarily will not treat the place of business of one corporation
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`-9-
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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 14 of 19
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`as the place of business of the other.” Blue Spike, LLC v. Nook Digital, LLC, No. 6:16-CV-1361-
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`RWS-JDL, 2017 WL 3263871, at *3 (E.D. Tex. July 28, 2017) (holding that Barnes and Noble’s
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`presence in district could not be attributed to its wholly owned subsidiary Nook Digital for patent
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`venue purposes), report and recommendation adopted sub nom. Blue Spike, LLC v. Caterpillar,
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`Inc., No. 6:16-CV-01361-RWS, 2017 WL 4129321 (E.D. Tex. Sept. 19, 2017) (quoting 14D
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`Wright & Miller, Federal Practice & Procedure, § 3823, at 148–49).
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`The employment listings identified in Vivato’s complaint (D.I. 1, Compl. ¶ 20) indicating
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`Austin as an optional location from which employees might work do not render venue proper in
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`this district. See ADTRAN, 2021 WL 1967985, at *4 (W.D. Tex. May 17, 2021). Again, while
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`some eero employees work from home in Texas, Vivato has not alleged that these homes are eero’s
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`place of business. “As the [Patent Venue] statute indicates, it must be a place of the defendant, not
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`solely a place of the defendant’s employee. Employees change jobs. Thus, the defendant must
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`establish or ratify the place of business. It is not enough that the employee does so on his or her
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`own.” Cray, 871 F.3d at 1363. eero does not own, lease, or control any of its employees’ homes.
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`(Lindsay Decl. ¶ 13.) As noted above, eero has not placed eero signs on its employees’ private
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`homes. (Id.) eero does not provide any procedure for eero customers to walk up to an eero
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`employee’s personal home to conduct business with eero. (Id. ¶ 15.) eero does not on its website
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`or elsewhere list the addresses of employee homes as places where eero conducts business. (Id. ¶
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`13.)
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`Without establishing that the Amazon Tech Hub, or any other location in Texas, is eero’s
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`place of business, Vivato has failed to satisfy this final prong of the “regular and established place
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`of business” test. Because venue for eero is improper in the Western District of Texas, eero’s
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`motion to dismiss should be granted. Magnacoustics, 1997 WL 592863, at *1.
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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 15 of 19
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`II.
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`IN THE ALTERNATIVE, THIS COURT SHOULD TRANSFER
`THIS CASE TO THE NORTHERN DISTRICT OF CALIFORNIA.
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`While venue is improper in this district, it is proper in the Northern District of California.
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`Vivato could have brought this case in the Northern District because eero is headquartered in San
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`Francisco, as Vivato admits (D.I. 1, Compl. ¶ 18), and eero operates a regular and established
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`business there. eero denies that it has infringed any valid claim of the patents-in-suit, but if
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`infringement is found, eero does not deny it sold the accused products in the Northern District of
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`California.3 This renders venue proper there. “While Symantec denies infringement, it does not
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`contest that should infringement be found, it would have taken place in the Northern District of
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`California. Thus, venue in the Northern District of California is proper under § 1400(b).” CUPP
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`Cybersecurity LLC v. Symantec Corp., No. 3:18-CV-01554-M, 2019 WL 1070869, at *6 (N.D.
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`Tex. Jan. 16, 2019) (citation omitted.).
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`As this case could have been brought in the Northern District of California, transfer is
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`appropriate if it would be in the interest of justice. As noted above, “[c]ourts faced with the choice
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`between dismissal and transfer frequently consider factors such as any possible statute of
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`limitations issues, whether the plaintiff’s claim appears to have any significant prospect of success,
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`and whether transferring the case rather than dismissing it would disserve judicial economy.”
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`EMED Techs. Corp., 2018 WL 2544564, at *5. Here, Vivato faces no statute of limitations issues
`
`
`3 Venue is proper in the Northern District of California as to the Amazon defendants as well. While
`denying infringement, the Amazon defendants do not dispute that accused products have been sold
`in that district, rendering venue proper there. See Vocalife LLC v. Amazon.com, Inc., No. 2:19-
`CV-00123-JRG, 2019 WL 6345191, at *3 (E.D. Tex. Nov. 27, 2019) (finding suit could have been
`brought in the Northern District of California because “Amazon has design and development
`facilities for the Accused Products in the Northern District of California.”); see also
`MasterObjects, Inc. v. Amazon.com, Inc., No. 20 CV 3478 (PKC), 2020 WL 6075528, at *1
`(S.D.N.Y. Oct. 15, 2020) (observing that case could have been brought against Amazon in the
`Northern District of California). Amazon.com Services LLC also operates fulfillment centers in
`the Northern District of California. Thus, this entire action should be transferred to the Northern
`District of California.
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`-11-
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`Case 6:21-cv-00619-ADA Document 23 Filed 09/07/21 Page 16 of 19
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`and eero submits the claims are unlikely to succeed. But transfer would foster rather than inhibit
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`judicial economy because Vivato cases involving one of the patents asserted here and other related
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`Vivato patents with overlapping inventors to the patents-in-suit are pending in the Northern
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`District of California. See XR Communications, LLC v. Ruckus Wireless, Inc., Case No. 3:2018-
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`cv-01992 (N.D. Cal.); XR Communications, LLC v. ARRIS Solutions, Inc., Case No. 3:2018-cv-
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`02736 (N.D. Cal.); XR Communications, LLC v. Ruckus Wireless, Inc., 3:2021-cv-04679 (N.D.
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`Cal.) (the “2021 Ruckus Case”). Vivato asserts in the 2021 Ruckus Case U.S. Patent No.
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`10,594,376, which is one of the two patents asserted in this case. The Court for the Northern
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`District of Calif