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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`PUBLIC VERSION
`
`AUDIOEYE, INC.,
`Plaintiff,
`
`v.
`ACCESSIBE LTD.,
`Defendant.
`
`6:20-cv-997-ADA
`
`ORDER GRANTING ACCESSIBE’S MOTION TO RECONSIDER
`AMENDED ORDER DENYING MOTION TO TRANSFER VENUE
`TO THE WESTERN DISTRICT OF NEW YORK [ECF No. 71]
`
`Came on for consideration this date is Defendant accessiBe Ltd.’s Motion to Reconsider
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`Amended Order Denying Motion to Transfer Venue to the Western District of New York, filed
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`December 13, 2021. ECF No. 71 (the “Reconsideration Motion”). Plaintiff AudioEye, Inc. filed
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`an opposition on December 27, 2021, ECF No. 73, to which accessiBe replied on January 3, 2022,
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`ECF No. 74. After careful consideration of the Reconsideration Motion, the Parties’ briefs, and
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`the applicable law, the Court GRANTS the Reconsideration Motion.
`
`I. BACKGROUND
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`Plaintiff AudioEye first filed suit against accessiBe on September 4, 2020, in the Austin
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`division of the Western District of Texas. No. 1:20-cv-00924, ECF No. 1. On October 26, 2020, it
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`voluntarily dismissed that case, No. 1:20-cv-00924, ECF No. 13, and refiled this case in Waco the
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`same day, ECF No. 1. AudioEye filed its second amended complaint on December 29, 2020. See
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`ECF No. 13 (“SAC”).
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`accessiBe is registered and located in Israel. ECF No. 21 at 3. It does not have any locations
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`in the United States or employees located here. Id. AudioEye is based in Tucson, Arizona and
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`incorporated in Delaware. ECF No. 13 ¶ 11.
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`The SAC alleges that accessiBe infringes nine related patents. The SAC also includes
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`Lanham Act claims for False Advertising and Product Disparagement (collectively the “Lanham
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`Act claims”). It further includes five New York state law claims for Product Disparagement,
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`Slander/Defamation, Tortious Interference with Prospective Economic Advantage, Deceptive
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`Business Practices, and Unjust Enrichment (collectively the “NYSL claims”). The Lanham Act
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`claims and the NYSL claims (collectively the “Non-Patent claims”) relate to conduct alleged to
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`have occurred while marketing accessiBe’s products, and more specifically, accessiBe’s
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`statements regarding accessiBe’s or AudioEye’s products and/or services that AudioEye alleges
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`to be false, misleading, or disparaging.
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`Consistent with most of the Non-Patent Claims being brought under New York law,
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`Plaintiff has focused on accessiBe’s alleged conduct regarding three entities located in New York:
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`the Marketing Association for the Finger Lakes Wine Country of New York (“Finger Lakes”),
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`Hoselton Auto Mall (“Hoselton”), and an unnamed potential consumer in New York (eventually
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`revealed to be AudioEye personnel). ECF No. 13 ¶¶ 189–191; ECF No. 37 at 4. The Lanham Act
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`and unjust enrichment claims rely at least on the same set of underlying allegations as the NYSL
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`claims, or explicitly reference Finger Lakes or Hoselton.
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`On March 8, 2021, accessiBe filed a motion to transfer venue under 28 U.S.C. § 1404(a)
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`to the U.S. District Court for the Western District of New York (“WDNY”) or, in the alternative,
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`dismiss for lack of personal jurisdiction. ECF No. 21 (the “Transfer Motion”). The Parties
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`conducted venue and jurisdictional discovery and on October 18, 2021, the Court entered an order
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`denying the relief sought in the Transfer Motion. ECF No. 51.
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`Though satisfied that the WDNY is a clearly more convenient venue, the Court denied
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`transfer because accessiBe failed to show that venue and jurisdiction are proper in the WDNY. See
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`generally id. On November 3, 2021, the Court issued an amended order correcting its erroneous
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`holding as to venue but maintaining that accessiBe failed to show that jurisdiction was proper in
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`the WDNY. ECF No. 60 (the “Amended Transfer Order”). On November 5, 2021, accessiBe filed
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`a petition for a writ of mandamus, seeking to reverse the amended order’s denial of transfer. See
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`Petition, In re AccessiBe, Ltd., No. 22-113, ECF No. 2 (Fed. Cir. Nov. 5, 2021). On December 6,
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`2021, the Federal Circuit denied that petition, stating that it would not be futile “for accessiBe to
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`ask the district court to first reconsider its decision in light of its arguments.” In re AccessiBe Ltd.,
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`No. 2022-113, 2021 U.S. App. LEXIS 35858, at *3 (Fed. Cir. Dec. 6, 2021). On December 13,
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`2021, accessiBe filed its Reconsideration Motion. That Motion is now ripe for judgment.
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`II. LEGAL STANDARD
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`A.
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`Reconsideration
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`Federal Rule of Civil Procedure 54(b) “allows parties to seek reconsideration of
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`interlocutory orders and authorizes the district court to ‘revise[ ] at any time’ ‘any order or other
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`decision . . . [that] does not end the action.’” Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th
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`Cir. 2017) (alterations in original) (quoting Fed. R. Civ. P. 54(b)). “Under Rule 54(b), the trial
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`court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the
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`absence of new evidence or an intervening change in or clarification of the substantive law.” Id. at
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`336 (quotation marks omitted). “Although the precise standard for evaluating a motion to
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`reconsider under Rule 54(b) is unclear . . . [s]uch a motion requires the Court to determine whether
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`reconsideration is necessary under the circumstances.” Dallas Cnty., Tex. v. MERSCORP, Inc., 2
`
`F. Supp. 3d 938, 950 (N.D. Tex. 2014) (quotation marks omitted).
`
`B.
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`Transfer Under 28 U.S.C. § 1404(a)
`
`In patent cases, motions to transfer under § 1404(a) are governed by the law of the regional
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`circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). Section 1404(a) provides
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`3
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`that, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may
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`transfer any civil action to any other district or division where it might have been brought or to
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`any district or division to which all parties have consented.” “Section 1404(a) is intended to place
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`discretion in the district court to adjudicate motions for transfer according to an ‘individualized,
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`case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487
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`U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`“The preliminary question under § 1404(a) is whether a civil action ‘might have been
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`brought’ in the [transfer] destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir.
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`2008) (“Volkswagen II”). If the destination venue would have been a proper venue, then “[t]he
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`determination of ‘convenience’ turns on a number of public and private interest factors, none of
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`which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358
`
`F.3d 337, 340 (5th Cir. 2004). The 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
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`cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a
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`case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
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`(“Volkswagen I”) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1982)). The public
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`factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local
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`interest in having localized interests decided at home; (3) the familiarity of the forum with the law
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`that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the
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`application of foreign law.” Id. The weight the Court gives to each of these assorted convenience
`
`factors will necessarily vary from case to case. See Burbank Int’l, Ltd. v. Gulf Consol. Int’l, Inc.,
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`441 F. Supp. 819, 821 (N.D. Tex. 1977). A court should not deny transfer where “only the
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`plaintiff’s choice weighs in favor of denying transfer and where the case has no connection to the
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`transferor forum and virtually all of the events and witnesses regarding the case . . . are in the
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`transferee forum.” In re Radmax, Ltd., 720 F.3d 285, 290 (5th Cir. 2013).
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`The burden to prove that a case should be transferred for convenience falls squarely on the
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`moving party. In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010). The burden that a
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`movant must carry is not that the alternative venue is more convenient, but that it is clearly more
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`convenient. Volkswagen II, 545 F.3d at 314 n.10. While “clearly more convenient” is not explicitly
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`equivalent to “clear and convincing,” the moving party “must show materially more than a mere
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`preponderance of convenience, lest the standard have no real or practical meaning.” Quest NetTech
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`Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019). Yet,
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`the Federal Circuit has clarified that, for a court to hold that a factor favors transfer, the movant
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`need not show that that factor clearly favors transfer. In re Apple Inc., 979 F.3d 1332, 1340 (Fed.
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`Cir. 2020).
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`A.
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`Reconsideration and Jurisdiction in the WDNY
`
`III. ANALYSIS
`
`The Court disagrees with accessiBe that the Amended Transfer Order offended the “party
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`presentation rule,” constituting a “drastic[] . . . abuse of discretion.” ECF No. 71 at 10. This Court
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`did not adduce new evidence. This Court did not present new arguments. accessiBe had a burden.
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`The Court determined that accessiBe fell short of it. accessiBe recognizes that Parties “are
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`responsible for advancing the facts and arguments entitling them to relief,” yet it shirked its
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`responsibility to advance facts and arguments entitling it to its requested relief: transfer under
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`§ 1404(a). ECF No. 71 at 9 (quoting Baude v. United States, 955 F.3d 1290, 1303–04 (Fed. Cir.
`
`2020)). It then laid blame at this Court’s doorstep. The Court would have drawn nearer to offending
`
`the party presentation rule had it done as accessiBe suggests and, on the briefing before it at the
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`time of the Amended Transfer Order, made accessiBe’s arguments for it—including corralling
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`relevant evidence and citing and applying New York, Federal Circuit, and Second Circuit law—
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`to conclude that jurisdiction lays in the WDNY for all the asserted claims (including those
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`untouched by accessiBe’s Rule 12(b)(2) challenge).
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`The Reconsideration Motion, however, lays out sufficient facts, arguments, and law to
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`convince this Court that the WDNY has personal jurisdiction over AudioEye for all the asserted
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`claims. See ECF No. 71 at 5–8. AudioEye does not dispute that jurisdiction is proper in the WDNY.
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`accessiBe has overcome the threshold question vexing its Transfer Motion. Revisiting this Court’s
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`Amended Transfer Order will not work too great a prejudice against AudioEye, so the Court will
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`proceed to balance the conveniences under § 1404(a).
`
`B.
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`Private Interest Factors
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`1.
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`Relative Ease of Access to Source of Proof
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv, Inc. v. Apple Inc., No. 6:18-
`
`cv-00372-ADA, 2019 U.S. Dist. LEXIS 171102, at *5 (W.D. Tex. Sept. 10, 2019). This factor
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`relates to the relative—not absolute—ease of access to non-witness evidence. See In re Radmax,
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`720 F.3d at 288; In re Apple, 979 F.3d at 1339. And “the movant need not show that all relevant
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`documents are located in the transferee venue to support a conclusion that the location of relevant
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`documents favors transfer.” In re Apple, 979 F.3d at 1340.
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`The Fifth Circuit has held that, even in the context of electronic documents that can be
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`accessed anywhere on earth, this factor is not superfluous. See Volkswagen II, 545 F.3d at 316; see
`
`also In re Dish Network L.L.C., No. 2021-182, 2021 U.S. App. LEXIS 31759, at *6 (Fed. Cir. Oct.
`
`21, 2021). Though having persistently characterized that holding as antiquated in the setting of a
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`modern patent dispute, this Court will continue to analyze this factor with a focus on the location
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`of physical documents and other evidence; and the hardware storing the relevant electronic
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`documents. See, e.g., Bluebonnet Internet Media Servs., LLC v. Pandora Media, LLC, No. 6-20-
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`CV-00731-ADA, 2021 U.S. Dist. LEXIS 137400, at *7 & n.1 (W.D. Tex. July 22, 2021), vacated
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`on other grounds, In re Pandora Media, LLC, No. 2021-172, 2021 U.S. App. LEXIS 30963 (Fed.
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`Cir. Oct. 13, 2021).
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`Party Evidence. accessiBe states that its sources of proof are located in Israel, where
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`accessiBe’s marketing efforts are based and where it researched, designed, and developed the
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`accused instrumentality that is the focus of the patent claims. ECF No. 21 at 6. accessiBe also
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`alleges that to the extent there is relevant information on acessiBe’s servers, those are located in
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`New York or abroad. Id. at 4; ECF No. 21-1 ¶ 6 (testifying that accessiBe’s hosting server is
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`located in New York, with a backup in Europe). Evidence located in Israel and Europe is neutral
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`under this factor because such evidence is remote from the WDNY and this District. But this Court
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`has repeatedly recognized that the location of hardware storing relevant electronic documents
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`bears on convenience. See, e.g., Bluebonnet, 2021 U.S. Dist. LEXIS 137400, at *7 & n.1. So the
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`location of accessiBe’s servers in New York is accorded some weight.
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`accessiBe further contends that there are two members of AudioEye’s sales team residing
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`in New York—Emily Baksic and Randall Heller—who purportedly interacted with accessiBe’s
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`sales team, performing what accessiBe refers to as “stealth competitive intelligence.” ECF No. 37
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`at 2. AudioEye’s SAC references that interaction and accessiBe asserts that these two AudioEye
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`personnel likely maintain evidence in New York regarding that interaction. See id. AudioEye notes
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`that, to the extent it even maintains relevant documents in its New York office, it would also have
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`relevant documents at its headquarters in Arizona and its office in Portland. ECF No. 34 at 15.
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`And its documents are primarily stored in the cloud and IT personnel managing the cloud
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`environment reside in Georgia. Id.
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`The Court gives weight to information that may reside in AudioEye’s New York office,
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`including that maintained by Mr. Heller, who AudioEye itself recognizes as a relevant witness.
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`ECF No. 34 at 18. But it also gives some shrift to evidence purportedly located with AudioEye in
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`Arizona and Oregon.
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`Non-party Evidence. AudioEye argues that accessiBe has
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`customers in Texas and they
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`may have information relevant to induced infringement and purchasing decisions relevant to the
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`Lanham Act claims. ECF No. 34 at 14. accessiBe notes in response that it has “t
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`
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`customers in New York.” ECF No. 37 at 3.
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`AudioEye also asserts that accessiBe has strategic partners in Texas with evidence relevant
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`to the Lanham Act claims. ECF No. 34 at 14. For example, Texas-based RealPage was in talks
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`with AudioEye before accessiBe solicited it with marketing materials including the allegedly false
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`and misleading statements. Id. AudioEye alleges that RealPage possesses evidence about these
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`statements and the damages accessiBe caused AudioEye. Id. Moreover, Austin-based
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`BigCommerce and Volusion, two of accessiBe’s strategic partners, purportedly have “evidence
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`about accessiBe’s marketing efforts that relate to the Lanham Act claims.” Id. According to
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`AudioEye, accessiBe offers BigCommerce and Volusion “financial incentives to sell accessiBe’s
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`accused tool to [their] customers” and marketing materials to aid sales efforts. Id. at 5. accessiBe
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`acknowledges that these two companies “can influence the decision of a very large group of
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`people.” Id. AudioEye contends that Volusion and BigCommerce help accessiBe disseminate its
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`allegedly false and misleading statements. Id. accessiBe provides evidence, however, of its
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`nationwide strategic partnerships, including at least three in the tristate area.
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`The Court accords little to no weight to the location of evidence retained by accessiBe
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`customers and strategic partners. AudioEye has not represented that accessiBe’s Texas customers
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`and partners maintain any evidence a New York customer or partner would not have. See
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`Moskowitz Fam. LLC. v. Globus Med., Inc., No. 6:19-CV-00672-ADA, 2020 WL 4577710, at *3
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`(W.D. Tex. July 2, 2020) (disregarding customers in the forum because it was unlikely they
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`maintained unique evidence regarding indirect infringement). For example, AudioEye remarks
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`that RealPage has evidence about allegedly “false and misleading statements” because accessiBe
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`sent it marketing materials. ECF No. 34 at 4–5, 14–15. The Court finds it unlikely that RealPage
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`is unique among accessiBe’s partners in receiving accessiBe marketing material. The accessiBe
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`marketing materials AudioEye attaches to its opposition are generic; there is no evidence that
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`materials were especially made for accessiBe’s Texas partners. See ECF No. 34 at 14–15. There
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`are specific emails directed at RealPage but the Court is not convinced these reveal relevant
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`information unlike anything shared with other partners beyond Texas. In addition, it seems likely
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`that the evidence AudioEye would solicit from accessiBe’s partners, like communications
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`accessiBe directs at its partners, is cumulative of that which AudioEye can discover from accessiBe
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`itself when discovery opens. The Court, therefore, accords the location of accessiBe’s customers
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`and partners little to no weight in this analysis. The same rationale also militates against according
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`weight to accessiBe customers and partners under the next two factors.
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`There is one exception: the Court will not disregard evidence possessed by Finger Lakes
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`and Hoselton. The SAC founds many of its NYSL claims on conduct directed at New York-based
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`Finger Lakes and Hoselton. See ECF No. 13 ¶¶ 185, 189–191, 198–201, 207–08, 213. The NYSL
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`claims have different elements from the federal claims and are naturally centered on conduct
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`arising from New York or directed at New York residents. See ECF No. 37 at 2. It is therefore
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`more likely that Finger Lakes and Hoselton, as the New York residents AudioEye has placed at
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`issue, maintain unique and relevant evidence bearing on the NYSL claims.
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`In sum, this factor favors transfer. Evidence in favor of transfer includes evidence
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`maintained by Finger Lakes and Hoselton, accessiBe documents maintained on New York-based
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`servers, and evidence maintained by New York-based AudioEye personnel. Only the evidence
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`AudioEye maintains in Arizona and Oregon favors maintaining this Action here, and only slightly
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`so given their distance from Texas. The evidence favoring transfer overwhelms the evidence
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`against it.
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`2.
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`Availability of Compulsory Process
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`Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within
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`100 miles of where the person resides, is employed, or regularly transacts business in person”; or
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`(b) “within the state where the person resides, is employed, or regularly transacts business in
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`person, if the person . . . is commanded to attend a trial and would not incur substantial expense.”
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`Fed. R. Civ. P. 45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015
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`WL 10818740, at *4 (W.D. Tex. Dec. 16, 2015). Under this factor, the Court focuses on non-party
`
`witnesses whose attendance may need to be secured by a court order. Fintiv, 2019 U.S. Dist.
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`LEXIS 171102, at *14 (citing Volkswagen II, 545 F.3d at 316). This factor “weigh[s] heavily in
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`favor of transfer when more third-party witnesses reside within the transferee venue than reside in
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`the transferor venue.” In re Apple, Inc., 581 F. App’x 886, 889 (Fed. Cir. 2014). When “there are
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`several witnesses located in the transferee forum and none in the transferor forum,” this factor
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`favors transfer. In re Google, No. 2021-171, 2021 WL 4592280, at *5 (Fed. Cir. Oct. 6, 2021).
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`The Federal Circuit has held that, under Fifth Circuit law, “when there is no indication that
`
`a non-party witness is willing, the witness is presumed to be unwilling and considered under the
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`compulsory process factor.” In re HP Inc., No. 2018-149, 2018 WL 4692486, at *3 n.1 (Fed. Cir.
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`Sept. 25, 2018); see also In re Hulu, LLC, No. 2021-142, 2021 U.S. App. LEXIS 22723, at *10
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`(Fed. Cir. Aug. 2, 2021) (“[W]here . . . the movant has identified multiple third-party witnesses
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`and shown that they are overwhelmingly located within the subpoena power of only the transferee
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`venue, this factor favors transfer even without a showing of unwillingness for each witness.”).
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`Further, this Court cannot “discount” third-party entities having pertinent information in the
`
`transferee venue “just because individual employees were not identified.” In re Apple Inc., No.
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`2021-181, 2021 U.S. App. LEXIS 33788, at *8 (Fed. Cir. Nov. 15, 2021) (quoting In re HP Inc.,
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`826 F. App’x 899, 903 (Fed. Cir. 2020)).
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`accessiBe asserts that New York-based Finger Lakes and Hoselton are particularly
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`important to the Non-Patent Claims because “[t]hey would provide relevant information regarding,
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`for example, the extent to which the allegedly false statements impacted their choice in
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`accessibility products, their reasons for choosing accessibility products that are unrelated to the
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`allegedly false statements, or any effort expended by Plaintiff as a result of any allegedly false
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`statements.” ECF No. 21 at 7.1
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`The same rationale supporting this Court’s finding that Finger Lakes and Hoselton
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`maintain relevant evidence further supports a finding that Finger Lakes and Hoselton personnel
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`likely possess relevant knowledge. And because such personnel are likely located in New York,
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`the WDNY may be able to compel their testimony (or likely the testimony of any other New York
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`customer or partner); this Court cannot. The Parties do not identify any other relevant witnesses
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`that this Court or the WDNY can compel to testify. (As indicated supra, this Court will disregard
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`witnesses associated with accessiBe’s Texas-based customers and partners.) Accordingly, this
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`factor favors transfer.
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`1 accessiBe also places these witnesses under the willing-witnesses factor. Because they are non-
`parties and nothing in the record suggests they are willing to travel to testify, the Court will only
`consider them under the compulsory-process factor.
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`3. Cost of Attendance of Willing Witnesses
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`“The convenience of witnesses is the single most important factor in the transfer analysis.”
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`Fintiv, 2019 U.S. Dist. LEXIS 171102, at *17. The Fifth Circuit has established the “100-mile
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`rule,” providing that “[w]hen the distance between an existing venue for trial of a matter and a
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`proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses
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`increases in direct relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d
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`at 204–05.
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`The Federal Circuit has held that, where witnesses would be required to travel a significant
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`distance no matter where they testify, those witnesses will only be slightly more inconvenienced
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`by having to travel to, for example, California, compared to Texas. In re Apple, 979 F.3d at 1342
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`(discussing witnesses traveling from New York) (citing Volkswagen II, 545 F.3d at 317); In re
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`Genentech, 566 F.3d at 1344 (stating that the 100-mile rule should not be “rigidly” applied in the
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`context of foreign witnesses). It has opined elsewhere that “[t]he comparison between the
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`transferor and transferee forum is not altered by the presence of other witnesses and documents in
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`places outside both forums.” In re Toyota Motor Corp., 747 F.3d at 1340; In re Google LLC, No.
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`2021-170, 2021 U.S. App. LEXIS 29137, at *12 (Fed. Cir. Sept. 27, 2021) (“[W]hen there are
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`numerous witnesses in the transferee venue and the only other witnesses are far outside the
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`plaintiff’s chosen forum, the witness-convenience factor favors transfer.”). And, in yet other cases,
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`it has considered only hypothetical travel-time statistics, and not distance, under this factor. See,
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`e.g., In re Google LLC, 2021 U.S. App. LEXIS 29137, at *12.
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`The Federal Circuit has recognized that “an employer’s cooperation in allowing an
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`employee to testify may diminish certain aspects of inconvenience to the employee witness (for
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`instance, the employee is not acting contrary to their employer’s wishes).” In re Hulu, No. 2021
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`U.S. App. LEXIS 22723, at *13. Elsewhere it has stated that inconvenience is not attenuated at all
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`when the witnesses are employees of the party calling them. See, e.g., In re Juniper Networks, Inc.,
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`14 F.4th 1313, 1319 (Fed. Cir. 2021).
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`accessiBe argues that WDNY would be more convenient for accessiBe’s Israeli personnel
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`because all flights from Israel to Austin already include a connection in New York. ECF No. 21 at
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`9. accessiBe specifically identifies Dekel Skoop, its Chief Operations Office, as having knowledge
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`about accessiBe and its operations. ECF No. 21-1 ¶ 3. Mr. Skoop also testifies that “[a]ll of
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`accessiBe’s engineers who are knowledgeable about the design and functionality of the accused
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`accessiBe software are located in Israel.” Id. ¶ 5. All employees responsible for accessiBe’s
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`“[s]ales, marketing, customer support, finances and interactions with third party accessibility
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`organizations . . .are also based in Israel.” Id. The Court accords the convenience of these Israeli-
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`based witnesses little weight; they will travel a significant distance irrespective of transfer. Flights
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`from Israel to the United States may have to connect through New York City—which is not in the
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`WDNY—but that does not transform New York City into the de facto residence for accessiBe’s
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`witnesses under this factor.
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`accessiBe also contends that “[t]o the extent [AudioEye’s] New York office houses
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`employees more knowledgeable about New York customers and potential customers,” the WDNY
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`would be more convenient for them. ECF No. 21 at 9. AudioEye accedes that its VP of Sales,
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`Randall Heller, lives in New York and has knowledge relevant to damages and accessiBe’s
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`marketing and business practice. ECF No. 34 at 18. But it also names the following AudioEye
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`personnel as having relevant knowledge: Hawaii-based Sean Bradley is a named inventor on the
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`Asserted Patents and has knowledge regarding the claimed invention, AudioEye’s products and
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`services, and accessiBe’s business practices; Oregon-based Dominic Varacalli is AudioEye’s
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`President and has knowledge relevant to developments of the Asserted Patent’s claimed invention,
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`AudioEye’s products and services, and accessiBe’s marketing and business practices; Georgia-
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`based David Pinckney is a named inventor and has knowledge of the developments of the claimed
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`invention; and Arizona-based Tyler D’Amore is an AudioEye VP with knowledge of AudioEye’s
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`products and services, damages related to accessiBe’s accused conduct, and accessiBe’s marketing
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`and business practices. Id. at 17–18. AudioEye contends that these four witnesses reside nearer
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`this District than the WDNY. Id. at 18.
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`Mr. Heller’s presence in New York favors transfer. Yet, under the 100-mile rule, this
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`District is, in this Court’s judgment, more convenient for the other four AudioEye personnel,
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`though, for some, only marginally so.
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`The Parties each argue that post-filing events affect the convenience analysis. This Court
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`is comfortable considering post-complaint facts in evaluating convenience. See Unification Techs.
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`LLC v. Micron Tech., Inc., No. 6:20-cv-500-ADA, 2022 U.S. Dist. LEXIS 4127, at *9–11 (W.D.
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`Tex. Jan. 10, 2022) (interpreting Hoffman v. Blaski, 363 U.S. 335, 343 (1960)). AudioEye asserts
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`that its General Counsel and Senior Counsel reside in this District. ECF No. 73 at 9 n.2. Their
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`convenience is owed no weight without a representation as to the relevant knowledge they possess.
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`AudioEye also represents that Ms. Baksic, one member of the New York-based AudioEye sales
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`team referenced supra, has since left AudioEye and New York for another opportunity in Florida.
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`ECF No. 73 at 9 n.2; ECF No. 39 ¶ 2. With any indication that she is obligated to travel to testify
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`in this Action, the Court does not regard her as a willing witness—nor will the Court consider her
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`under the compulsory process factor, given that she has moved beyond the authority of the WDNY.
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`accessiBe argues that “much of accessiBe’s leadership is now based in New York.” ECF
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`No. 71 at 2. It did not provide an affidavit to that effect. In its Transfer Motion briefing, Mr. Skoop
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`testified that he, along with another accessiBe founder, Gal Vizel, were “in the process of
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