Case 6:21-cv-00646-ADA Document 33 Filed 03/15/22 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Civil Action No. 6:21-cv-00646-ADA
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`DEFENDANTS DELL TECHNOLOGIES INC. AND DELL INC.’s OPPOSED
`MOTION FOR INTRA-DISTRICT TRANSFER OF VENUE TO
`THE AUSTIN DIVISION OF THE WESTERN DISTRICT OF TEXAS
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`XR COMMUNICATIONS, LLC, dba
`VIVATO TECHNOLOGIES,
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`Plaintiff,
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`v.
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`DELL TECHNOLOGIES INC. AND
`DELL INC.,
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`Defendants.
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`Exhibit 1109
`Page 01 of 19
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`Case 6:21-cv-00646-ADA Document 33 Filed 03/15/22 Page 2 of 19
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`STATEMENT OF FACTS ................................................................................................. 2
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`LEGAL STANDARD ......................................................................................................... 3
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`ARGUMENT ...................................................................................................................... 5
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`I.
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`THE COURT SHOULD TRANSFER THIS CASE TO THE AUSTIN
`DIVISION .............................................................................................................5
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`A. Vivato could have filed this Case in Austin....................................................5
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`B. The Austin Division is clearly more convenient than the Waco
`Division ...........................................................................................................5
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`1. Access to sources of proof is easier in the Austin Division ......................7
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`2. The cost of attendance for willing witnesses is less in the Austin
`Division and the convenience is greater ...................................................7
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`3. Practical factors that make trial of a case easy, expeditious and
`inexpensive favor transfer to Austin .......................................................10
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`4. Local interests favor transfer to Austin ...................................................12
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`5. Court congestion favors travel to Austin ................................................13
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`6. The remaining factors are neutral. ..........................................................13
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`CONCLUSION ................................................................................................................. 14
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`i
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`Alacritech Inc. v. CenturyLink, Inc.,
`No. 2:16-CV-00693, 2017 U.S. Dist. LEXIS 152438
`(E.D. Tex. Sept. 19, 2017) .............................................................................................8
`
`In re Apple Inc.,
`No. 2021-181, 2021 U.S. App. LEXIS 33788
`(Fed. Cir. Nov. 15, 2021) .............................................................................................10
`
`Auto-Dril, Inc. v. Pason Sys. USA Corp.,
`No. 6:15- CV-00093, 2015 U.S. Dist. LEXIS 183479
`(W.D. Tex. June 29, 2015) ...........................................................................................14
`
`Correct Transmission LLC v. Adtran, Inc.,
`No. 6:20-CV-00669-ADA, 2021 U.S. Dist. LEXIS 93102
`(W.D. Tex. May 17, 2021) ...........................................................................................11
`
`Data Scape Ltd. v. Dell Techs., Inc.,
`No. 19-CV-00129-ADA (W.D. Tex. June 7, 2019), ECF No. 44 ....................... passim
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`DataQuill, Ltd. v. Apple Inc.,
`No. A-13-CA-706-SS, 2014 U.S. Dist. LEXIS 82410
`(W.D. Tex. June 13, 2014) .............................................................................................6
`
`In re DISH Network L.L.C.,
`No. 2021-182, 2021 U.S. App. LEXIS 31759 (Fed. Cir. Oct. 21, 2021) ....................11
`
`Frac Shack Inc. v. Alaska Fuel Distribs. Inc.,
`No. 18-CV-00660 (W.D. Tex. Jan. 29, 2019), ECF No. 28 ..........................................2
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`Future Link Systems, LLC v. Advanced Micro Devices, Inc.,
`No. 6:20-cv-01176-ADA (W.D. Tex. Oct. 18, 2021), ECF No. 62...............................2
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................8, 13
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`Hammond Dev. Int’l, Inc. v. Amazon.com, Inc.,
`No. 1:20-CV-000342-ADA (W.D. Tex. Mar. 30, 2020), ECF No. 65 ................ passim
`
`MiMedx Grp., Inc. v. Tex. Human Biologics, Ltd.,
`No. 14-CV-00464, 2014 U.S. Dist. LEXIS 191022
`(W.D. Tex. Aug. 12, 2014) .................................................................................. passim
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`Neo Wireless LLC v. Dell Techs., Inc.,
`Case No. 6:21-cv-00024 (W.D. Tex. Jan. 20, 2022), ECF No. 60 ...................... passim
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`Neodron Ltd. v. Dell Techs. Inc.,
`No. 6:19-CV-00396-ADA (W.D. Tex. Aug. 19, 2019), ECF No. 16 ............................2
`
`In re NetScout Sys., Inc.,
`No. 2021-173, 2021 U.S. App. LEXIS 30500 (Fed. Cir. Oct. 13, 2021) ....................10
`
`In re Radmax, Ltd.,
`720 F.3d 285 (5th Cir. 2013) ...........................................................................3, 4, 6, 12
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`Sonrai Memory Ltd. v. Oracle Corp,
`Case No. 6:21-cv-00116 (W.D. Tex. Feb. 2, 2022), ECF No. 48..................................2
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .....................................................................................4, 5
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`Wet Sounds, Inc. v. Audio Formz, Inc.,
`No. 17-cv-00141-LY, 2017 U.S. Dist. LEXIS 168455
`(W.D. Tex. Oct. 11, 2017) ...........................................................................................13
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)....................................................................................11
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`Statutes
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`28 U.S.C. § 1404(a) .....................................................................................................1, 3, 4
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`iii
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`This Case has no relevant connections to the Waco Division of the Western
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`District of Texas. Dell Technologies Inc. and Dell Inc. (“Dell”) therefore seek an intra-
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`district transfer to the Austin Division—where Dell is headquartered—under 28 U.S.C.
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`§ 1404(a). Counsel for Dell contacted counsel for XR Communications LLC dba Vivato
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`Technologies (“Vivato”) on March 10 and again on March 14 to request a conference to
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`discuss whether they would consent to this motion. On March 14 Plaintiff indicated that
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`they were still evaluating Dell's request to transfer venue and that they would provide an
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`answer in writing on March 15 as to whether they would oppose. As of this filing,
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`Plaintiff has not indicated whether or not they oppose this request and so Dell treats this
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`motion as opposed.
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`INTRODUCTION
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`Dell was founded in a dorm room at the University of Texas at Austin and has
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`been headquartered in the Austin/Round Rock area for more than thirty-five years. The
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`relevant witnesses, and documents in this case are mostly located in Austin and have no
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`ties to the Waco Division of the Western District of Texas. Vivato’s principal place of
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`business is in Venice, California. (See, Dkt. 1 ¶ 10.) Vivato does not allege that it has a
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`presence or that it does any business in the Waco Division. (See Dkt. 1.) Nor does
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`Vivato allege any relevant contacts in the Waco Division. (See id.) To Dell’s
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`knowledge, there are none.
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`This Court recently transferred another case involving Dell as a defendant to the
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`Austin Division, where the plaintiff had no connections to the Waco Division, and had
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`technologies and products related to this case. Neo Wireless LLC v. Dell Techs., Inc.,
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`Case No. 6:21-cv-00024 (W.D. Tex. Jan. 20, 2022), ECF No. 60 at *13–14. This very
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`Court held that the Austin Division is a more convenient forum where Dell showed that
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`the sources of proof are more easily accessible in Austin, and where Austin has a stronger
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`local interest. Id.
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`Intra-district transfer under the current set of facts is common. Indeed, Courts in
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`this District often transfer cases to other Divisions within the District when a case has
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`little or no connection to the initial forum and most relevant events and witnesses are
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`connected to elsewhere in the district. See, e.g., Sonrai Memory Ltd. v. Oracle Corp, Case
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`No. 6:21-cv-00116 (W.D. Tex. Feb. 2, 2022), ECF No. 48; Neo Wireless v. Dell
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`Technologies, Case No. 6:21-cv-00024 (W.D. Tex. Jan. 20, 2022), ECF No. 60; Future Link
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`Systems, LLC v. Advanced Micro Devices, Inc., No. 6:20-cv-01176-ADA (W.D. Tex. Oct.
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`18, 2021), ECF No. 62; Micropairing Techs. LLC v. Toyota Motor Mfg. Tex., Inc., No. 6:20-
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`cv-01001-ADA (W.D. Tex. Oct. 1, 2021), ECF No. 48; Hammond Dev. Int’l, Inc. v.
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`Amazon.com, Inc., No. 1:20-CV-000342-ADA (W.D. Tex. Mar. 30, 2020), ECF No. 65;
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`Data Scape Ltd. v. Dell Techs., Inc., No. 19-CV-00129-ADA (W.D. Tex. June 7, 2019),
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`ECF No. 44; Neodron Ltd. v. Dell Techs. Inc., No. 6:19-CV-00396-ADA (W.D. Tex. Aug.
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`19, 2019), ECF No. 16; MiMedx Grp., Inc. v. Tex. Human Biologics, Ltd., No. 14-CV-
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`00464, 2014 U.S. Dist. LEXIS 191022 (W.D. Tex. Aug. 12, 2014); Frac Shack Inc. v.
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`Alaska Fuel Distribs. Inc., No. 18-CV-00660 (W.D. Tex. Jan. 29, 2019), ECF No. 28.
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`STATEMENT OF FACTS
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`Dell was founded in 1984 in Austin, Texas, and has maintained its global
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`headquarters within the Austin Division ever since. (Kennedy Decl. ¶ 5.) Dell 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 in the Austin Division. (Id.;
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`2
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`Sarkis Decl. ¶ 6.) In contrast, Dell has no facilities or operations in Waco. (Kennedy
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`Decl. ¶ 5.) Dell’s likely witnesses in this case are also primarily located in the Austin
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`Division. (Kennedy Decl. ¶ 6; Hareng Decl. ¶¶ 5–11, 13.) Dell has not identified any
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`likely witnesses in Waco. (Id.)
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`Like Dell, Vivato also has no relevant connection to the Waco Division. (See,
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`Dkt. 1.) Vivato alleges that its principal place of business is in Venice, California. (See
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`Dkt. 1; ¶ 10.) The Complaint does not allege that Vivato conducts any business or has
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`any connections to the Waco Division or that any relevant acts occurred there. (See Dkt.
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`1.) Indeed, nine of the alleged inventors are located in Washington state, one in
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`Massachusetts, and one in Canada, but none are located in Waco. (See U.S. Patent No.
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`10,715,235.)
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`Despite this, Vivato filed its complaint on June 22, 2021 in the Waco Division,
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`alleging that Dell infringes a single patent—U.S. Patent No. 10,715,235 (the “Asserted
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`Patent”). (Dkt. 1.) In support of its contention that venue is proper in the Western
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`District of Texas, Vivato has pleaded facts based entirely on Dell’s operations in the
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`Austin Division. (See, Dkt. 1 ¶ 21.) The Complaint does not identify any meaningful
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`connections to the Waco Division for Dell, Vivato, or any third parties.
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`LEGAL STANDARD
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`“For the convenience of parties and witnesses, in the interest of justice, a district
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`court may transfer any civil action to any other district or division where it might have
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`been brought.” 28 U.S.C. § 1404(a). As the Fifth Circuit held in Radmax, the § 1404(a)
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`analysis applies not only when a defendant seeks transfer to another judicial district, but
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`also when a defendant seeks transfer to another division within the same district. In re
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`Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013).
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`In determining whether transfer is appropriate under § 1404(a), courts first
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`consider “whether a civil action ‘might have been brought’ in the destination venue.” In
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`re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008). If so, courts weigh the
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`relative convenience of the venue based on: “(1) the relative ease of access to sources of
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`proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3)
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`the cost of attendance for willing witnesses; (4) all other practical problems that make trial
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`of a case easy, expeditious and inexpensive; (5) the administrative difficulties flowing
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`from court congestion; (6) the local interest in having localized interests decided at home;
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`(7) the familiarity of the forum with the law that will govern the case; and (8) the
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`avoidance of unnecessary problems of conflict of laws [or in] the application of foreign
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`law.” Radmax, 720 F.3d at 288 (citing Volkswagen, 545 F.3d at 315).
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`In Radmax, the Fifth Circuit ordered an intra-district transfer because the “facts
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`and circumstances of [the] case [were] wholly grounded in the transferee forum” and the
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`“case [had] no connection to the [transferor forum]” after it found that three factors
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`supported the transfer and the remaining five factors were neutral. Id. at 290. Similarly,
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`in Amazon and Data Scape, this Court ordered intra-district transfer from Waco to Austin
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`when access to sources of proof were easier in Austin, no employees of the defendant
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`were in the Waco division, and other factors either favored transfer or were neutral.
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`Amazon, ECF No. 65, slip op. at *10-11; Data Scape, ECF No. 44, slip op. at *3–6.
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`Perhaps most importantly, this Court considered transfer of another case against
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`Dell with similar facts and ordered intra-district transfer after finding that (1) access to
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`sources of proof was easier in Austin, (2) the cost of attendance for willing witness was
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`lower in Austin, and (3) Austin had a greater local interest in the outcome of the suit, even
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`though it also found (4) the existence of a co-pending companion case (that had also
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`sought transfer) and (5) the Division’s time-to-trial statistics both disfavored transfer. Neo
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`Wireless, ECF No. 60, slip op. at *13-14.
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`ARGUMENT
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`I.
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`The Court Should Transfer this Case to the Austin Division
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`The Court should transfer this case to the Austin Division because Vivato could
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`have originally filed its Complaint in Austin, and Austin is the only proper and most
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`convenient division in the Western District of Texas.
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`A.
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`Vivato could have filed this Case in Austin
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`As an initial consideration, Courts look to whether the case could have initially
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`been filed in the venue a party seeks transfer to. Volkswagen, 545 F.3d at 312. Indeed,
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`Vivato cannot dispute that it could have filed this action in the Austin Division without
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`impugning its claim that it could bring this action in this Division. This is indisputable
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`because Dell has its principal place of business in the Austin Division and nearly every
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`alleged fact in the Complaint supports venue in the Austin Division. See MiMedx, 2014
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`U.S. Dist. LEXIS 191022, at *1. Vivato has alleged in its Complaint that Dell is subject
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`to personal jurisdiction in this District and that venue is proper in this District, which is
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`sufficient to overcome this hurdle for purposes of an intra-district motion to transfer.
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`B.
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`The Austin Division is clearly more convenient than the Waco
`Division
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`Because Vivato could have brought its Complaint in the Austin Division, the
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`analysis proceeds to the relevant convenience of the Austin Division. Of the eight
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`factors, five favor transfer and three are neutral. No factors support remaining in Waco.
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`Thus, Austin is “clearly” the more convenient venue. “[T]he movant need not show the
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`[factors] substantially outweigh the plaintiff’s choice of venue—it is enough to show the
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`new venue is clearly more convenient than the original one.” DataQuill, Ltd. v. Apple
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`Inc., No. A-13-CA-706-SS, 2014 U.S. Dist. LEXIS 82410, at *7 (W.D. Tex. June 13,
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`2014) (emphasis in original, citing Volkswagen, 545 F.3d at 314).
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`In Data Scape and Neo Wireless, this Court addressed two cases involving
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`virtually the same venue facts. In both cases, patent owners with no ties to Waco sued
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`Dell in the Waco Division. This Court found that “the relevant convenience weigh[ed]
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`heavily in favor of transfer,” and that “Dell ha[d] met its burden that Austin is a clearly
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`more convenient venue.” Data Scape, ECF No. 44 slip op. at 3; Neo Wireless, ECF No.
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`60, slip op. at *14. The facts that supported transfer in those two cases–including Dell’s
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`extensive facilities, headquarters, and operations in the Round Rock/Austin area, its
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`relevant witnesses in the area, and the strong local interest in the case–are equally true
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`today in this case.
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`Neither Dell nor Vivato have any relevant connection to the Waco Division. Any
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`of the relevant sources or proof that lie in the Western District of Texas, lie in the Austin
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`Division. (Sarkis Decl. ¶ 7; Hareng Decl. ¶ 14.) Accordingly, the relative ease of access
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`to sources of proof, the cost of attendance for willing witnesses, Austin’s local interest in
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`the case, court congestion, and other practical problems all strongly favor transfer. The
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`remaining three factors are neutral. Thus, the Court should order transfer. See Radmax,
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`720 F.3d at 290 (compelling intra-district transfer where three factors supported transfer
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`and five were neutral); Amazon, ECF No. 65, slip op. *10-11 (same); Data Scape, ECF
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`No. 44, slip op. *3-6 (same).
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`1.
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`Access to sources of proof is easier in the Austin
`Division
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`The first factor, access to sources of proof, favors transfer to the Austin Division.
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`Neither Dell nor Vivato have relevant operations in the Waco Division. As such, there
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`are no relevant sources of proof in the Waco Division.
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`Relevant evidence and witnesses from Dell can mostly be found in the Austin
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`Division with additional relevant employees in North Carolina and Taiwan. (Kennedy
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`Dec. ¶ 6; Hareng Decl. ¶ 13.) Dell has identified at least six (6) employees located in the
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`Austin Division who have responsibilities relating to the accused products, and relevant
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`technical documents from those employees are also located in the Austin Division.
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`(Kennedy Decl. ¶ 6; Hareng Decl. ¶ 5–13.) Courts have recognized that in “patent
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`infringement cases, ‘the bulk of the relevant evidence usually comes from the accused
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`infringer…[c]onsequently, the place where the defendant’s documents are kept weigh[s]
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`in favor of transfer to that location.” MiMedx, 2014 U.S. Dist. LEXIS 191022, at *5
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`(quoting Nintendo., 589 F.3d at 1199).
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`In sum, the Austin Division is the place where Dell has a predominant presence in
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`this District. Dell knows of no relevant evidence or witnesses, for either party, located
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`within the Waco Division.
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`2.
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`The cost of attendance for willing witnesses is
`less in the Austin Division and the convenience is
`greater
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`The third convenience factor considers “the cost of attendance for willing
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`witnesses.” MiMedx, 2014 U.S. Dist. LEXIS 191022, at *2. The most important factor in
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`the transfer analysis is the convenience of the witnesses. In re Genentech, Inc., 566 F.3d
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`1338, 1342 (Fed. Cir. 2009). When analyzing this factor, the Court considers all
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`potential material and relevant witnesses. Alacritech Inc. v. CenturyLink, Inc., No. 2:16-
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`CV-00693, 2017 U.S. Dist. LEXIS 152438, at *16–17 (E.D. Tex. Sept. 19, 2017). This
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`factor likewise favors transfer.
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`Dell has its main offices in Round Rock and Austin and is aware of no relevant
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`witnesses in Waco. (Kennedy Decl. ¶ 6; Hareng Decl. ¶ 13.) Requiring Austin-based
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`witnesses to travel over ninety (90) miles each way to Waco for hearings or trials would
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`place an unnecessary burden on the witnesses that can be avoided if the case were in
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`Austin. For example, the witness order and testimony schedule at trial can be
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`unpredictable, and because of this, witnesses may need to be on-call while waiting to
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`testify. If the Court holds trial in Austin, these on-call witnesses can keep working at
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`their regular office or homes while they wait. They would not have the same opportunity
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`in Waco.
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`Relevant Dell witnesses also reside outside of the Western District of Texas,
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`including Cary (Raleigh), North Carolina and Taiwan. (Kennedy Decl. ¶ 6.) For the
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`witnesses residing both in North Carolina and Taiwan, travel to Austin would impose less
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`costs and be less disruptive than Waco for at least three reasons. First, direct flights from
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`North Carolina are available to Austin, but not Waco. (Griffin Decl., Exs. 1, 2.) Second,
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`flights are both cheaper and on average shorter in duration from both North Carolina and
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`Taiwan to Austin than flights from North Carolina and Taiwan to Waco and do not
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`require the added burden of a car rental to travel from Austin or Dallas to Waco. (Griffin
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`Decl. Exs., 1–4.) Third, witnesses could work in Dell’s Austin or Round Rock offices
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`while waiting to testify if trial were in Austin.
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`To the extent that Vivato argues that trial in Austin would inconvenience Vivato
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`witnesses more than trial in Waco, the Court should discount that inconvenience for three
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`reasons. First, as this Court has observed, in “patent infringement cases, the bulk of the
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`relevant evidence usually comes from the accused infringer.” MiMedx, 2014 U.S. Dist.
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`LEXIS 191022, at *5 (quoting Nintendo, 589 F.3d at 1199). Thus, although the parties
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`cannot determine the identity and exact number of witnesses likely to testify at trial at this
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`early stage of the case, it is reasonable to assume that the number of witnesses will be
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`greater for Dell than for Vivato. In sum, a transfer to Austin will decrease the collective
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`overall cost and inconvenience to the parties.
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`Second, Vivato caused its own inconvenience by filing in Texas, rather than
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`California or Washington. If convenience to its witnesses were paramount, Vivato could
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`have filed this suit closer to its own witnesses. By filing in Waco, Vivato has shown that
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`access to the judicial resources in Texas outweighed any resulting inconvenience to its
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`witnesses. With this choice made, Vivato cannot complain that an intra-district transfer
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`to Austin, which would be similarly inconvenient for its inventors and witnesses, would
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`increase inconvenience, particularly where the requested transfer would curtail the
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`inconvenience for Dell.
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`Third, travel to Austin is likely easier and cheaper for Vivato’s witnesses as well,
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`given the greater number of direct flights to Austin available from major airports across
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`the United States. If this Court were to assume that the witnesses would hail from either
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`Washington or Vivato’s California headquarters, they could easily fly into Austin’s
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`international airport to attend trial and would not have to drive 90 miles to Waco.
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`To the extent that third party witnesses, such as Dell’s suppliers for its Wi-Fi
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`components, are or become willing witnesses in the lawsuits, Austin is likewise more
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`convenient or at least equally convenient to Waco for those witnesses travelling from
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`outside of Texas, for the same reasons. Furthermore, some of Dell’s Wi-Fi component
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`suppliers—including Intel and Qualcomm, both of which are headquartered in
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`California—have offices in Austin, but no offices in Waco. (Griffin Decl. Exs., 5–6.)
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`Consequently, the same considerations that makes Austin a more convenient venue for
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`Dell and Vivato’s witnesses also make Austin more convenient than Waco for third party
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`witnesses.
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`In sum, the third factor strongly favors transfer to the Austin Division.
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`3.
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`Practical factors that make trial of a case easy,
`expeditious and inexpensive favor transfer to
`Austin
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`The fourth factor—practical factors that make trial of a case easy, expeditious and
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`inexpensive—favors transfer to Austin. This factor particularly favors transfer when the
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`case is in its earliest stages. MiMedx, 2014 U.S. Dist. LEXIS 191022, at *2. Here, this
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`case is still at its earliest stages. Markman has not yet occurred, and fact discovery has
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`not yet opened. The trial date, in keeping with this Court’s normal practice, will not truly
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`be fixed until after Markman.
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`Vivato’s co-pending actions in the Waco Division cannot justify denying transfer.
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`In re NetScout Sys., Inc., No. 2021-173, 2021 U.S. App. LEXIS 30500, at *13 (Fed. Cir.
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`Oct. 13, 2021) (rejecting that “the mere co-pendency” of cases “in a particular district
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`automatically tips the balance in the non-movant’s favor”); see also In re Apple Inc., No.
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`Exhibit 1109
`Page 14 of 19
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`

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`Case 6:21-cv-00646-ADA Document 33 Filed 03/15/22 Page 15 of 19
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`2021-181, 2021 U.S. App. LEXIS 33788, at *12 (Fed. Cir. Nov. 15, 2021) (where co-
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`pending “suit involves different defendants and different accused products,” it is likely to
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`involve “significantly different discovery, evidence, proceedings, and trial” and therefore
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`“any ‘incremental gains in keeping [this] case in the Western District of Texas’ are
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`insufficient ‘to justify overriding the inconvenience to the parties and witnesses’”) (citing
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`In re Samsung Elecs. Co., 2 F.4th 1371, 1380 (Fed. Cir. 2021)); In re DISH Network
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`L.L.C., No. 2021-182, 2021 U.S. App. LEXIS 31759, at *10 (Fed. Cir. Oct. 21, 2021)
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`(ordering transfer, despite four co-pending suits accusing other defendants of infringing
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`the same patents, because “any judicial economy considerations in keeping this case in
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`Texas are insufficient to outweigh” the other factors).
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`That Vivato sued other defendants in the same forum does not “negate[] the
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`significance of having trial close to where most of the identified witnesses reside and
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`where the other convenience factors clearly favor.” In re Zimmer Holdings, Inc., 609
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`F.3d 1378, 1382 (Fed. Cir. 2010). This Court has found “little if any risk of judicial
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`waste or inefficiency” associated with transferring a case with three other actions in the
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`same court that shared some of the same asserted patents. Data Scape, ECF No. 44, slip
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`op. at *5. Indeed, as this Court has previously ruled, this consideration should be given
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`less weight since at least some of the defendants in the Related Cases, including Google
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`(Case No. 6:21-cv-00625 (ECF No. 23)) and Amazon (Case No. 6:21-cv-00619 (ECF
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`No. 23)) are also challenging venue in their own cases. See Correct Transmission LLC v.
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`Adtran, Inc., No. 6:20-CV-00669-ADA, 2021 U.S. Dist. LEXIS 93102, at *14 (W.D.
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`Tex. May 17, 2021); Neo Wireless, Dkt. 60 at *9. Furthermore, Vivato has already made
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`the choice to file patent infringement cases involving related patents in multiple
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`11
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`Exhibit 1109
`Page 15 of 19
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`

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`Case 6:21-cv-00646-ADA Document 33 Filed 03/15/22 Page 16 of 19
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`jurisdictions, including the Northern District of California and the Central District of
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`California (where, in addition to this District, it has filed lawsuits involving U.S. Patent
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`10,594,376, which is a family member of the sole asserted patent in this case),
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`demonstrating no specific local interest in having this case tried in this Division.
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`Accordingly, this factor also favors transfer to Austin.
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`4.
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`Local interests favor transfer to Austin
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`The sixth factor, local interest in having localized interests decided at home, also
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`favors transfer to Austin. Austin has a considerable interest in deciding this case, while
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`Waco has none. The division in which an accused alleged infringer is located has the
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`greater local interest in adjudicating the action. Neo Wireless, ECF No. 60, slip op. at
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`*12 (citing Data Scape, LTD. v. Dell Techs., Inc., No. 6:19-CV-00129-ADA, 2019 U.S.
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`Dist. LEXIS 154170, at *5 (W.D. Tex. June 7, 2019); In re Hoffmann-La Roche Inc.,
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`587 F.3d at 1336). Dell operates its headquarters and employs approximately 14,000
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`people in the Austin Division. (Kennedy Decl. ¶ 5.) Austin has more interest and
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`connection to the outcome of this litigation than Waco, where no party has a presence.
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`MiMedx, 2014 U.S. Dist. LEXIS 191022, at *7 (“Defendants and their employees are
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`local to the San Antonio area. The ultimate outcome of this suit likely affects local San
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`Antonio interests more acutely than local Austin interests.”); Amazon, ECF No. 65, slip
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`op. at *9-10; Data Scape, ECF No. 44, slip op. at *5-6. Dell’s suppliers of Wi-Fi
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`components, such as Intel and Qualcomm, also have offices in the Austin division and
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`none in the Waco division.
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`Vivato’s choice to file this suit in Waco does not change this analysis because a
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`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 (citation omitted). This is particularly true here
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`Exhibit 1109
`Page 16 of 19
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`

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`Case 6:21-cv-00646-ADA Document 33 Filed 03/15/22 Page 17 of 19
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`where Vivato has chosen to sue in a District with which it has no relevant connections.
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`See Wet Sounds, Inc. v. Audio Formz, Inc., No. 17-cv-00141-LY, 2017 U.S. Dist. LEXIS
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`168455, at *10 (W.D. Tex. Oct. 11, 2017) (“[T]he Court will not give deference to a
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`plaintiff’s choice of forum when the plaintiff is not a resident of the chosen forum and
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`the underling facts of the case did not occur in the chosen forum.”). It is further true
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`when the plaintiff is already bringing multiple patent infringement lawsuits involving
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`related patents in multiple jurisdictions.
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`In sum, the Court should determine this factor also favors transfer to Austin.
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`5.
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`Court congestion favors travel to Austin
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`Court congestion is considered “the most speculative” factor, and when “relevant
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`factors weigh in favor of transfer and others are neutral, then the speed of the transferee
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`district court should not alone outweigh all those other factors.” Genentech, 566 F.3d at
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`1347. Since the number of cases filed and pending in this Division has increased
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`precipitously over the last two to three years, the congestion of cases in this Division
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`counsels transferring additional cases to other Divisions within the District to alleviate
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`that congestion. (Griffin Decl. ¶ 8.) (finding as of March 15, 2022, 855 currently pending
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`patent cases in this Division for a single judge, compared to 40 patent cases in the Austin
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`Division for two judges). Indeed, today there are 1,156 currently pending total cases in
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`this Division for a single judge, while Judges Yeakel and Pitman in the Austin Division
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`collectively have 1,037 currently pending cases. (Griffin Decl. ¶ 8.)
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`6.
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`The remaining factors are neutral.
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`The remaining factors are neutral. Dell is unaware of any third-party witnesses
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`unwilling to attend trial. “However, courts, including courts within this district, have
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`found this factor to be neutral ‘where the parties have not alleged that non-party
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`Exhibit 1109
`Page 17 of 19
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`

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`Case 6:21-cv-00646-ADA Document 33 Filed 03/15/22 Page 18 of 19
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`witnesses are unwilling to testify.’” Auto-Dril, Inc. v. Pason Sys. USA Corp., No. 6:15-
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`CV-00093, 2015 U.S. Dist. LEXIS 183479, at *7 (W.D. Tex. June 29, 2015). In any
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`event, any witnesses within the subpoena power of this Division will be within the
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`subpoena power of the Austin Division as well, so this factor is neutral.
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`There is also no dispute that both divisions equally are familiar with the patent
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`laws, are subject to the same rules, and apply the same governing circuit law. Therefore,
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`these factors a