Case 2:17-cv-00514-JRG Document 77 Filed 09/28/18 Page 1 of 22 PageID #: 3323
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`HTC CORPORATION,
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`Plaintiff,
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`Defendant.
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`CIVIL ACTION NO. 2:17-CV-00514-JRG
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`MEMORANDUM OPINION AND ORDER
`Before the Court is HTC Corporation’s Motion to Dismiss Pursuant to Fed. R. Civ. P.
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`12(b)(2) or, in the Alternative, Transfer Venue Pursuant to 28 U.S.C. § 1404(a) to the Northern
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`District of California. (Dkt. No. 29.) Having considered the Motion, the Court is of the opinion
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`that it should be and hereby is DENIED for the reasons set forth herein.
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`I.
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`BACKGROUND
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`Plaintiff AGIS Software Development LLC (“AGIS”) is a Texas limited liability company
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`with its principal place of business in Marshall, Texas. (Dkt. No. at 1 ¶ 1.) Defendant HTC
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`Corporation (“HTC”) is a foreign company organized and existing under the laws of Taiwan with
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`its principal place of business in New Taipei, Taiwan. (Id. ¶ 2.)
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`On June 21, 2017, AGIS filed suit against HTC, alleging infringement of U.S. Patent Nos.
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`9,467,838; 9,445,251; 9,408,055; and 8,213,970 (the “Asserted Patents”). (Dkt. No. 1.) On
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`January 22, 2018, HTC filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2) or, in the
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`Alternative, Transfer Venue Pursuant to 28 U.S.C. § 1404(a) to the Northern District of California.
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`(the “HTC Motion”) (Dkt. No. 29.) The Parties completed briefing on HTC’s Motion on March
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`7, 2018. (Dkt. No. 49.) After considering the Parties’ arguments and specifically AGIS’s request
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`for jurisdictional discovery on HTC, (Dkt. No. 40 at 17), this Court ordered limited discovery and
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`renewed briefing on the issue of personal jurisdiction. (Dkt. No. 51.)
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`II.
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`LEGAL STANDARD
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`A.
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`Personal Jurisdiction
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`Personal jurisdiction is governed by Federal Circuit law in patent cases. Autogenomics, Inc.
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`v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1016 (Fed. Cir. 2009); Beverly Hills Fan Co. v. Royal
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`Sovereign Corp., 21 F.3d 1558, 1565 (Fed. Cir. 1994). The plaintiff bears the burden of
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`establishing that the defendant is subject to personal jurisdiction. Celgard, LLC v. SK Innovation
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`Co., Ltd., 792 F.3d 1373, 1378 (Fed. Cir. 2015). If no jurisdictional discovery is conducted, the
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`plaintiff need only make a prima facie showing. Id. However, when, as here, there has been
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`jurisdictional discovery, the preponderance of the evidence standard applies. Id. (citing
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`Pieczenik v. Dyax Corp., 265 F.3d 1329, 1334 (Fed. Cir. 2001)).
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`Whether a court may exercise personal jurisdiction over an out-of-state defendant is a two-
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`step analysis: (1) does the state’s long-arm statute permit service of process, and if so, (2) does
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`exercising jurisdiction over the defendant violate due process? Autobytel, Inc. v. Insweb Corp.,
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`No. 2:07-cv-00524, 2009 WL 901482, at *1 (E.D. Tex. Mar. 31, 2009) (citing Genetic Implant
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`Sys., Inc. v. Core-Vent Corp., 123 F.3d 1455, 1458 (Fed. Cir. 1997)). Since Texas’s long-arm
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`statute is coextensive with the due process inquiry, the two inquiries collapse into a single
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`analysis of whether asserting jurisdiction comports with due process. Johnston v. Multidata Sys.
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`Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008); ATEN Int’l Co. v. Emine Tech. Co., 261 F.R.D.
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`112, 118 (E.D. Tex. 2009). Due process is satisfied if (1) the defendant has established
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`minimum contacts with the forum state; and (2) the exercise of jurisdiction would not offend
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`“traditional notions of fair play and substantial justice.” Autobytel, 2009 WL 901482, at *1
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`(quoting Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 325 U.S.
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`310, 316 (1945)). Once the plaintiff demonstrates that the defendant has sufficient contacts with
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`the forum, the burden shifts to the defendant to show that litigating in the forum would be unfair
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`or unreasonable. Celgard, 792 F.3d at 1377.
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`Minimum contacts can be found on the basis of general jurisdiction, specific jurisdiction, or
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`the stream of commerce theory. Goodyear Dunlop Tires Ops., S.A. v. Brown, 131 S. Ct. 2846,
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`2851 (2011); Beverly Hills Fan, 21 F.3d at 1566. General jurisdiction exists when the
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`defendant’s contacts with the forum are “so continuous and systematic as to render [it]
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`essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 128 (2014).
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`Specific jurisdiction is satisfied when the defendant has “purposefully directed [its] activities at
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`the residents of the forum, and the litigation results from alleged inquires that arise from or relate
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`to those activities.” Icon Health & Fitness, Inc. v. Horizon Fitness, Inc., No. 5:08-cv-00026,
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`2009 WL 1025467, at *3 (E.D. Tex. Mar. 26, 2009) (citing Burger King Corp. v. Rudzewicz, 471
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`U.S. 462 (1985)).
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`Under the stream of commerce theory, minimum contacts are found if the defendant
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`“deliver[s] its products into the stream of commerce with the expectation that they will be
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`purchased by customers in the forum State.” Beverly Hills Fan, 21 F.3d at 1566 (quoting World-
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`Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297–98 (1980)).1 The Supreme Court is
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`split over whether merely placing a product into the stream of commerce, defined as “the regular
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`1 Placing a product into the stream of commerce can form the basis for specific jurisdiction if the plaintiff alleges
`patent infringement based on the defendant’s shipment of allegedly infringing products into the forum state. Beverly
`Hills Fan, 21 F.3d at 1565 (“The allegations are that defendants purposefully shipped the accused fan into Virginia
`through an established distribution channel. The cause of action for patent infringement is alleged to arise out of these
`activities. No more is usually required to establish specific jurisdiction.”).
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`and anticipated flow of products from manufacture to distribution to retail sale” (the “Brennan
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`test”), or whether the existence of additional conduct by the defendant purposefully directed
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`toward the forum state (the “O’Connor test”) satisfies this test. Asahi Metal Indus. Co. v. Super.
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`Ct. of Cal., Solano Cty., 480 U.S. 102, 112, 117 (1987). The Federal Circuit has declined to
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`resolve this split and determines whether the specific facts at issue support jurisdiction under
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`either theory. Beverly Hills Fan, 21 F.3d at 1566.
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`Despite these divergent views, it is undisputed that “unilateral actions of a third party having
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`no pre-existing relationship with the tortfeasor” will not confer jurisdiction over a foreign
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`defendant. Beverly Hills Fan, 21 F.3d at 1565 (citing World-Wide Volkswagen Corp., 444 U.S.
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`at 297). Put differently, jurisdiction “arises from the efforts of the [defendant] to serve, directly
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`or indirectly, the market for its product.” Id. at 1566 (quoting World-Wide Volkswagen, 444 U.S.
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`at 297).
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`If minimum contacts have been found, the defendant bears the burden of showing that it would
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`be unfair or unreasonable to maintain suit in the forum. Asahi, 480 U.S. at 121–22 (Stevens, J.,
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`concurring in part and concurring in the judgment) (quoting Int’l Shoe, 326 U.S. at 320); Beverly
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`Hills Fan, 21 F.3d at 1568. This analysis requires balancing various factors: “(1) the burden on
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`the defendant; (2) the forum State’s interest in adjudicating the dispute; (3) the plaintiff’s interest
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`in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining
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`the most efficient resolution of controversies; and (5) the shared interest of the several states in
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`furthering fundamental substantive social policies.” Burger King Corp. v. Rudzewicz, 471 U.S.
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`462, 477 (1985) (internal citations and quotation marks omitted). Jurisdiction is generally denied
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`in the “rare situation in which the plaintiff’s interest and the state’s interest in adjudicating the
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`dispute in the forum are so attenuated that they are clearly outweighed by the burden of subjecting
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`the defendant to litigation within the forum.” Beverly Hills Fan, 21 F.3d at 1568 (internal citations
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`omitted).
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`B.
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`Transfer Under 28 U.S.C. § 1404(a)
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`Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest
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`of justice, a district court may transfer any civil action to any other district or division where it
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`might have been brought.” 28 U.S.C. § 1404(a). The first inquiry is “whether the judicial district
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`to which transfer is sought would have been a district in which the claim could have been filed.”
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`In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). “Any civil action for
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`patent infringement may be brought in the judicial district where the defendant resides, or where
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`the defendant has committed acts of infringement and has a regular and established place of
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`business.” 28 U.S.C. § 1404(b); TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct.
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`1514, 1519 (2017) (Ҥ1404(b) is the sole and exclusive provision controlling venue in patent
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`infringement actions.”) (internal citations and quotation marks omitted). For purposes of §
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`1404(b), a domestic corporation resides only in its state of incorporation. TC Heartland, 137 S.
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`Ct. at 1521.
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`HTC is not a domestic corporation. However, as noted above, once this threshold inquiry
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`is met, the court analyzes public and private factors relating to the convenience of parties and
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`witnesses as well as the interests of particular venues in hearing the case. Volkswagen I, 371 F.3d
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`at 203; In re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir. 2009). The private factors are
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`“(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to
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`secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all
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`other practical problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen
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`I, 371 F.3d at 203 (internal citation omitted). The public factors are “(1) the administrative
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`difficulties flowing from court congestion; (2) the local interest in having localized interests
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`decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4)
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`the avoidance of unnecessary problems of conflict of laws of the application of foreign law.” Id.
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`These factors are decided based on “the situation which existed when suit was instituted.” Hoffman
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`v. Blaski, 363 U.S. 335, 343 (1960). Though the private and public factors apply to most transfer
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`cases, “they are not necessarily exhaustive or exclusive,” and no single factor is dispositive. In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 314–15 (5th Cir. 2008) (“Volkswagen II”).
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`To prevail on a motion to transfer under § 1404(a), the movant must show that transfer is
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`“clearly more convenient” than the venue chosen by the plaintiff. Id. at 315; accord In re Apple
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`Inc., 456 F. App’x 907, 909 (Fed. Cir. 2012) (holding that a movant must “meet its burden of
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`demonstrating [] that the transferee venue is ‘clearly more convenient.’”) (internal citation
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`omitted). Absent such a showing, the plaintiff’s choice of venue is to be respected. Volkswagen
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`II, 545 F.3d at 315. When deciding a motion to transfer under § 1404(a), the court may consider
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`undisputed facts outside of the pleadings such as affidavits or declarations, but it must draw all
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`reasonable inferences and resolve factual conflicts in favor of the non-moving party. See Sleepy
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`Lagoon, Ltd., v. Tower Grp., Inc., 809 F. Supp. 2d 1300, 1306 (N.D. Okla. 2011); see also Cooper
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`v. Farmers New Century Ins. Co., 593 F. Supp. 2d 14, 18–19 (D.D.C. 2008).
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`III. ANALYSIS
`Personal Jurisdiction Over HTC
`A.
`The Court first addresses the issue of personal jurisdiction raised by HTC. HTC is a
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`“Taiwanese corporation with its principal place of business in New Taipei City, Taiwan.” (Dkt.
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`No. 29 at 4.) HTC asserts that it has “no connection to this District” as all of its activities relating
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`to the accused smartphones are confined to Taiwan. (Id. at 1.) HTC argues that it “develops, tests,
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`and manufactures the accused smartphones in Taiwan,” (id. at 4), and that its wholly-owned
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`subsidiary, HTC America Inc. (“HTC America”), “imports, markets, and sells [the accused]
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`smartphones” to third parties in the United States. (Id. at 4–5.) HTC argues that it has no control
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`or authority over HTC America or the third-party resellers, and therefore “any alleged sale in
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`Texas” by “HTC America or third-party resellers cannot be imputed to [it].” (Id. at 12.) As a
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`result, HTC argues that it does not have the requisite minimum contacts with this District necessary
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`to find personal jurisdiction.
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`AGIS does not dispute that specific or general personal jurisdiction is improper, but instead
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`argues that HTC has sufficient contacts under the stream of commerce theory. (Dkt. No. 40 at 6.)
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`AGIS claims that HTC sells its smartphones “through a distribution channel it established with
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`another HTC entity, with knowledge that, through HTC America’s distribution, the accused
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`devices will be sold nationwide, including in Texas.” (Id.) To support its argument, AGIS points
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`to several facts uncovered in discovery: (1) HTC formed HTC America to sell phones in the United
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`States and uses HTC America as its “exclusive distributor within the U.S.,” (Dkt. No. 54 at 2); (2)
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`HTC America primarily distributed its phones through major U.S. carriers, such as Verizon,
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`Spring, AT&T and T-Mobile, during the relevant time period and the underlying distribution
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`agreements were executed by HTC and approved by HTC president-level personnel, (Dkt. No. 59
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`at 3); (3) HTC knew that HTC America also sells phones on its website, which serves the entire
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`United States, including Texas and this District, (id.); (4) HTC commissioned a study on its end-
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`users, which “provided demographic information on HTC owners to be used for advertising
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`purposes” and “identified the top markets for HTC products within the U.S. including Dallas-Ft.
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`Worth, Houston and San Antonio,” (id. at 2–3), and (5) HTC received “regular sales forecasts and
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`carrier-specific projections from HTC America.” (Id. at 3.) AGIS avers that these facts
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`demonstrate that “HTC sold its products into a nationwide distribution with the expectation that it
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`would reach Texas,” and that “HTC was aware that its products were sold in Texas,” thereby
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`satisfying both the Brennan and O’Connor applications of the stream of commerce test. (Id.)
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`In response, HTC argues that it “is only interested in the sale of phones generally, and that
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`interest is satisfied when HTC America purchases and imports phones from Taiwan.” (Dkt. No.
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`55 at 4.) It has no role in how carriers sell its phones, and AGIS has failed to provide any evidence
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`of sales in Texas or HTC’s awareness of such sales. (Id.) Whether or how phones end up in Texas
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`is entirely the result of unilateral acts of third-parties. (Id.) Thus, “[a]ny arguable chain is broken
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`with HTC America outside of Texas.” (Id. at 6.)
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`The Court finds HTC’s arguments unavailing. HTC primarily relies on the fact that it has
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`no control over HTC America or the third-party resellers, and therefore lacks sufficient contacts
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`under the stream of commerce theory. However, the relevant inquiry is not whether HTC
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`controlled the intermediaries in the distribution chain, but instead whether it “deliver[ed] its
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`products into the stream of commerce with the expectation that they will be purchased by
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`consumers in the forum State.” Beverly Hills Fan, 21 F.3d at 1566 (quoting World-Wide
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`Volkswagen, 444 U.S. at 297–98). HTC admitted in its briefing that it sells its smartphones to
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`HTC America and that it knew HTC America resells the smartphones to third-party distributors in
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`the United States. (Dkt. No. 29 at 12–13; Dkt. No. 55 at 4.) These third-party distributors have
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`included major carriers such as Verizon, Sprint, AT&T, and T-Mobile. (Dkt. No. 54 at 2.) In fact,
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`HTC was not only aware of this distribution channel, HTC intentionally formed it for that purpose.
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`HTC created HTC America to sell its phones in America, and HTC’s own personnel—not HTC
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`America— executed the various agreements with the U.S. carriers. (Dkt. No. 59 at 2.) HTC also
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`commissioned a study on its end-users, which revealed that top markets for HTC products include
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`Texas. (Id. at 2–3.) These facts are sufficient to show that HTC “knew, or reasonably could have
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`foreseen, that a termination point of the channel was [Texas].” Beverly Hills Fan, 21 F.3d at 1564.
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`The Eastern District of Michigan recently found personal jurisdiction based on similar
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`facts. In Ford Global Technologies LLC v. New World International, Inc., the plaintiff argued that
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`jurisdiction was proper over Defendants New World International, Inc. and United Commerce
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`Centers, Inc. (collectively, “United”) because United sold products in Michigan through their
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`national distributor, Auto Lighthouse, LLC (“Auto Lighthouse”). No. 2:15-cv-10394, 2016 WL
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`3349041, at *1 (E.D. Mich. June 16, 2016). Auto Lighthouse sold products via several websites
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`and did not have any physical stores or inventory. When an online order was placed, it would
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`purchase the product from New World International Inc., and then ship it to the contiguous 48
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`states, including Michigan. Id. at *1. The court found that United had sufficient contacts with
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`Michigan under the stream of commerce theory because: (1) United formed Auto Lighthouse to
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`increase its online presence and sales in the United States; (2) Auto Lighthouse filled its online
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`orders by purchasing the products from United, and sold products throughout the contiguous
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`United States, including Michigan; and (3) United monitored Auto Lighthouse’s performance,
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`among other things. Id. at *11–14. Based on these actions, the court concluded that “United uses
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`Auto Lighthouse, and in particular, Auto Lighthouse’s websites, to sell its inventory nationally
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`and into Michigan, and that United is not only aware of the national reach of Auto Lighthouse’s
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`business, it aids Auto Lighthouse in maintaining and extending that reach.” Id. at *13.
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`Likewise, HTC sells its products via an established distribution channel through HTC
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`America with knowledge, or at least reasonable foreseeability, that its products will end up in
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`Texas. AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1365 (Fed. Cir. 2012) (holding
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`that presence of “defendant’s continuous, established distribution channels” is a “significant factor
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`supporting the exercise of personal jurisdiction [under] Beverly Hills Fan”); see also MHL Tek,
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`LLC v. Nissan Motor Co., No. 2:07-cv-289, 2008 WL 910012, at *1 (E.D. Tex. Apr. 2, 2008)
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`(finding personal jurisdiction proper over defendant that sold vehicles containing the accused
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`products to a related foreign entity, which sold the vehicles to a related U.S. entity for distribution
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`throughout the U.S., including Texas); Serius Innovative Accessories, Inc. v. Cabela’s, Inc., No.
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`09-cv-102, 2009 WL 9141752, at *3 (S.D. Cal. Nov. 2, 2009) (finding personal jurisdiction even
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`though defendant denied knowledge of sales in California because defendant’s “subjective
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`expectations about its products sales are only relevant to the extent they are reasonable” and since
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`defendant’s distributor ships nationwide, “the only reasonable expectation is that their products
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`would be marketed and sold in California”). The presence of this intentionally established
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`distribution channel, therefore, provides sufficient grounds to assert personal jurisdiction over
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`HTC.
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` Notwithstanding the above, HTC argues that a finding of personal jurisdiction would be
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`unfair and unreasonable. However, jurisdiction is not found in the “rare situation[] in which the
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`plaintiff’s interest and the state’s interest in adjudicating the dispute in the forum are so attenuated
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`that they are clearly outweighed by the burden of subjecting the defendant to litigation [therein].”
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`Beverly Hills Fan, 21 F.3d at 1568; see also Burger King, 471 U.S. at 477 (holding that defendant
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`must present a “compelling case” to defeat jurisdiction if he has purposefully directed his activities
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`at the forum). HTC has failed to show that this is one of those rare cases. AGIS is a Texas
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`company with its principal place of business in this District and as such, it has a strong interest in
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`having its injuries remedied in its home state. Texas also has a “manifest interest in providing its
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`residents with a convenient forum for redressing injuries inflicted by out-of-state actors.” Burger
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`King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985). This is especially true when, as here, the sale
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`of the accused smartphones is not an isolated occurrence but arises from HTC’s concerted efforts
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`to serve the U.S. market, including Texas. While there is no dispute that a burden is placed on
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`HTC, a foreign corporation, by being hailed into court in this District, that burden is one that HTC
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`faces in any United States district court and is not one that is easily outweighed by Plaintiff’s (and
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`this state’s respective) interests in resolving the dispute here.
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`Accordingly, based on the totality of the circumstances, the Court finds that the exercise of
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`personal jurisdiction over HTC is proper.
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`Transfer Under 28 U.S.C. § 1404(a)
`B.
`The Court now addresses the issue of transfer under § 1404(a). HTC does not dispute that
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`this action could have been properly filed in the Northern District of California, (Dkt. No. 29 at
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`15), and AGIS is silent on this issue in its briefing. Thus, the threshold requirement for transfer
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`under § 1404(a) has been satisfied. The Court now proceeds to analyze the private and public
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`factors considered in determining whether transfer is appropriate.
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`1.
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`Private Interest Factors
`Relative Ease of Access to Sources of Proof
`a)
`When considering the relative ease of access to sources of proof, a court looks to where
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`documentary evidence, such as documents and physical evidence, are stored. Volkswagen II, 545
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`F.3d at 316. For this factor to weigh in favor of transfer, HTC must show that transfer to the
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`Northern District of California will result in more convenient access to sources of proof. See Diem
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`LLC v. BigCommerce, Inc., No. 6:17-cv-186, 2017 WL 6279907, at *2 (E.D. Tex. Dec. 28, 2017).
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`HTC argues that this factor favors transfer because relevant documents are “more
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`accessible in the Northern District of California.” (Dkt. No. 29 at 16.) HTC submits that it
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`“develops, tests, and manufactures Android smartphones in Taiwan” and as such “maintains its
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`engineering, marketing, and finance documents” there. (Dkt. 29-1 at 2 ¶2, 3 ¶8.) It has no
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`documents or facilities in this District. (Dkt. No. 29 at 16.) It argues that most of the relevant
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`documents in the United States reside with non-parties outside of Texas. (Id.) Its subsidiary and
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`non-party, HTC America, imports the accused devices into the United States, and its documents
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`are relevant to AGIS’s damages claim. (Dkt. No. 47 at 6.) HTC America is headquartered in
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`Seattle, Washington and does not maintain any documents in this District. (Dkt. No. 29 at 16.)
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`All of “its records relating to sales, finance, marketing, market analysis, and forecasts [are] in the
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`State of Washington,” (Dkt. No. 29-2 at 2 ¶ 5) and can be “securely accessed” at the San Francisco
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`office of HTC America Innovation, Inc. (“HTC Innovation”), a Washington state subsidiary of
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`HTC. (Id. at 3 ¶ 10; Dkt. No. 29 at 17.) HTC also explains that non-party Google possesses
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`“critical documentation and sensitive source code” that are physically present in or electronically
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`accessible in the transferee district. (Dkt. No. 29 at 16–17.) AGIS’s infringement contentions
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`“focus[] solely on the operation of Google’s apps” and “Google’s source code for its apps is
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`closed.” (Id.) HTC represents that Google will not electronically transfer its source code to it or
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`AGIS. (Dkt. No. 29 at 17; Dkt. No. 47 at 8.)2 Finally, HTC states that the prosecution documents
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`for three of the Asserted Patents are located in the Northern District of California. (Dkt. No. 29 at
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`18.)
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`In response, AGIS argues that it maintains its books and records at its office in this District
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`as well as “documents in the offices of its related companies located in Juniper, Florida; Lenexa,
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`Kansas; [and] Austin, Texas.” (Dkt. No. 40 at 26.) Its consultant, Eric Armstrong, also has relevant
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`documents in this District, “including e-mails regarding the development of software and
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`marketing which are stored on his computer.” (Id. at 5.) “AGIS also intends to obtain evidence
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`2 HTC cites to several declarations from Google witnesses submitted in a related case, Agis Software LLC v.
`Huawei, 2:17-cv-00513. Those citations support HTC’s contention that most of Google’s documents are stored in
`or electronically accessible in the Northern District of California. However, those citations do not state, explicitly or
`implicitly, that Google has refused or will refuse to electronically transfer its source code to HTC or AGIS.
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`relevant to damages, such as the consumer market value of the features enabled by the Patents-in-
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`Suit, consumer surveys and marketing information regarding demand for particular applications
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`and features from third-party cellular carriers, including AT&T, Sprint, and Verizon,” whose
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`headquarters are in Dallas, Texas (AT&T); Overland, Kansas (Sprint); and Basking Ridge, New
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`Jersey (Verizon), each of which AGIS states is “substantially closer and more convenient to this
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`District than to the Northern District of California.” (Id. at 26–27.) With respect to Google’s source
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`code, AGIS asserts that its infringement “contentions rely on Google’s open source code and/or
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`application programming interfaces which are publicly available” and thus sees no reason why the
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`parties cannot access it in this District. (Id. at 24–25.) It also argues that even if Google has
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`relevant documentation, “HTC fails to identify the subject matter of any documents or why they
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`cannot be produced electronically in this District.” (Id. at 25.)3
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`HTC points to relevant documents that are stored with it in Taiwan, with its subsidiary and
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`non-party HTC America in Washington, and with non-party Google in California. As a foreign
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`corporation with documents well outside the United States, the relative ease of access to its
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`documents will not substantially change across different districts and is thus neutral. HTC submits
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`that documents from Google and HTC America are relevant to AGIS’s infringement and damages
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`claims, respectively, and are stored in locations much closer to the transferee district.4
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`3 On September 19, 2018, HTC moved to supplement the record in support of its motion to transfer venue to the
`Northern District of California. (Dkt. No. 70.) In its motion, HTC provided evidence that AGIS served a subpoena
`on Google in both of the consolidated cases, Agis Software Development, LLC v. Huawei Device USA Inc. et al., No.
`2:17-cv-513 and Agis Software Development, LLC v. HTC Corp. et al, No. 2:17-cv-514. The subpoena sought the
`production of Google’s confidential source code for several of the accused applications in the Northern District of
`California. HTC argued that these subpoena notices rebut AGIS’s claims that its infringement claims rest solely on
`Google’s publicly available source code and that such source code is located in the Northern District of California.
`The Court granted HTC’s motion to supplement the record. (Dkt. No. 76.) The Court acknowledges that the
`subpoenas served on Google suggest that Google possesses relevant documents in the transferee forum.
`4 AGIS argues that Google can electronically transfer its documents to this District and so that should counsel
`against transfer. While it is true that documents in digital form can be easily transferred electronically, the Fifth
`Circuit nonetheless has made clear that for purposes of this factor, the relevant inquiry is the ease of access to where
`information is stored. Implicit v. Trend Micro, No. 6:16-cv-00080, 2016 U.S. Dist. LEXIS 191571, at *5 (E.D. Tex.
`Sept. 1, 2016) (citing Volkswagen II, 545 F.3d at 316) (“Despite technological advances in transportation of
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`Accordingly, those sources of proof weigh in favor of transfer. AGIS, on the other hand, points to
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`sources of proof located in this District, Kansas, and Florida. These documents include “AGIS’s
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`books and records,” documents relevant to software and marketing from its consultant Eric
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`Armstrong, and “documents relevant to damages” from “third-party cellular carrier, including
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`AT&T, Spring, and Verizon.” (Dkt. No. 40 at 26-27.) Texas, Kansas, and Florida are substantially
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`closer to this District than to the Northern District of California, and thus those sources of proof
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`weigh against transfer.
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`On balance, while relevant documents reside in multiple locations, the Court finds that this
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`factor weighs slightly in favor of transfer given that a majority of the documents relevant to the
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`accused products are located closer to the transferee district and that defendants generally face a
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`heavier evidentiary burden in patent cases. Godo Kaisha IP Bridge I. v. Xilinx, Inc., No. 2:17-cv-
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`00100, 2017 WL 4076052, at *3 (E.D. Tex. Sept. 14, 2017); In re Genentech, Inc., 566 F.3d 1338,
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`1345 (Fed. Cir. 2009) (holding that relevant evidence in patent cases often comes from the accused
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`infringer and may weigh in favor of transfer to that location).
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`Availability of Compulsory Process
`b)
`The second private interest factor instructs the Court to consider the availability of
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`compulsory process to secure the attendance of witnesses, particularly non-party witnesses whose
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`attendance may need to be secured by a court order. In re Volkswagen II, 545 F.3d at 216. A
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`district court’s subpoena power is governed by Federal Rule of Civil Procedure 45. For purposes
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`of § 1404(a), there are three important parts to Rule 45. See Virtual Agility, Inc. v. Salesforce,
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`Inc., No. 2:13-cv-00011, 2014 WL 459719, at *4 (E.D. Tex. Jan. 31, 2014) (explaining 2013
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`electronic documents, physical accessibility to sources of proof continues to be a private interest factor to be
`considered.”). While this arguably appears illogical in today’s world, the Court follows such guidance in its
`analysis.
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`amendments to Rule 45). First, a district court has subpoena power over witnesses that live or
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`work within 100 miles of the courthouse. Fed. R. Civ. P. 45(c)(1)(A). Second, a district cou