Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 1 of 21 PageID #: 328
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`QUEST NETTECH CORPORATION,
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`
`Plaintiff,
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`v.
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`APPLE INC.,
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`
`Defendant.
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`
`Case No. 2:19-cv-00118-JRG
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`
`JURY TRIAL DEMANDED
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`PLAINTIFF QUEST NETTECH CORPORATION’S RESPONSE IN
`OPPOSITION TO APPLE INC.’S MOTION
`TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a) (DKT. 20)
`
`

`

`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 2 of 21 PageID #: 329
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`TABLE OF CONTENTS
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`Page(s)
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`I.
`
`INTRODUCTION ........................................................................................................ 1
`
`II.
`
`BACKGROUND ...................................................................................................... 2
`
`A.
`
`Plaintiff Quest NetTech Corporation .................................................................... 2
`
`B. Apple’s Connections to Texas and this Eastern District of Texas ........................ 3
`
`III. ARGUMENT ............................................................................................................ 4
`
`A.
`
`Legal Standard....................................................................................................... 4
`
`B.
`
`The Private Interest Factors Weigh Against Transfer ........................................... 6
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`1.
`
`Relative Ease of Access to Sources of Proof Weighs Against Transfer ........... 6
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`2. Availability of Compulsory Process to Secure the Attendance of Witnesses
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`Does Not Favor Transfer ........................................................................................................ 8
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`3.
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`The Cost of Attendance for Willing Witnesses Weighs Against Transfer ...... 10
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`4. All Other Practical Problems Weigh Against Transfer ................................... 11
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`C.
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`The Public Interest Factors Weigh Against Transfer .......................................... 11
`
`1.
`
`Local Interest Weighs Against Transfer .......................................................... 12
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`2.
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`Court Congestion Weighs Against Transfer .................................................... 12
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`3.
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`Familiarity with the Governing Law and Conflicts of Law ............................ 12
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`D. NetTech’s Choice of Venue Should Be Given Consideration ............................ 13
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`IV. CONCLUSION ....................................................................................................... 15
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`i
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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 3 of 21 PageID #: 330
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Abatix Corp. v. Capra,
`No. 2:07-cv-541, 2008 WL 4427285 (E.D. Tex. Sept. 24, 2008)............................................10
`
`AGIS Software Development LLC v. Apple Inc.,
`No. 2:17-cv-516-JRG, 2018 WL 2721826 (E.D. Tex. June 6, 2018) ..............................6, 8, 15
`
`AGIS Software Development LLC v. HTC Corp.,
`No. 2:17-cv-00514-JRG, 2018 WL 4680558 (E.D. Tex. Sept. 28, 2018) ...............................10
`
`Aloft Media, LLC v. Adobe Sys.,
`No. 6:07-CV-355, 2008 WL 819956 (E.D. Tex. Mar. 25, 2008) .................................... passim
`
`In re Apple Inc.,
`743 F.3d 1377 (Fed. Cir. 2014)..................................................................................................7
`
`In re Apple Inc.,
`No. 2018-151, Dkt. 20 (Fed. Cir. Oct. 16, 2018) .................................................................4, 15
`
`Arielle, Inc. v. Monster Cable Prod., Inc.,
`No. 206CV382TJW, 2007 WL 951639 (E.D. Tex. Mar. 26, 2007) ......................................8, 9
`
`Core Wireless Licensing, S.A.R.L. v. Apple Inc.,
`No. 6:12-cv-100-LED-JDL, 2013 WL 682849 (E.D. Tex. Feb. 22, 2013) .....................5, 7, 14
`
`CXT Sys., Inc. v. Container Store, Inc.,
`No. 2:18-cv-00173-RWS-RSP, 2019 WL 1506015 (E.D. Tex. Apr. 5, 2019) ..........5, 6, 12, 13
`
`Frito-Lay N. Am. Inc. v. Medallion Foods, Inc.,
`867 F. Supp. 2d 859 (E.D. Tex 2012) ..................................................................................8, 10
`
`Gulf Oil Corp. v. Gilbert,
`330 U.S. 501 (1947) .............................................................................................................6, 13
`
`Kahn v. Gen. Motors Corp.,
`889 F.2d 1078, 1083 (Fed. Cir. 1989)........................................................................................5
`
`Novelpoint Learning v. Leapfrog Enter.,
`No. 6:10-cv-229, 2010 WL 5068146 (E.D. Tex. Dec. 6, 2010) ................................................7
`
`Peloton Interactive, Inc. v. Flywheel Sports, Inc.,
`No. 2:18-cv-00390-RWS-RSP, 2019 WL 2303034 (E.D. Tex. May 30, 2019) ......................12
`
`ii
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`

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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 4 of 21 PageID #: 331
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`Seven Networks, LLC v. Google LLC,
`No. 2:17-cv-00442-JRG, 2018 WL 4026760 (E.D. Tex. Aug. 15, 2018) .............................6, 8
`
`In re Verizon Business Network Servs. Inc.,
`635 F.3d 559 (Fed. Cir. 2011)..................................................................................................15
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .....................................................................................................5
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .................................................................................................5, 6
`
`Statutes
`
`28 U.S.C. § 1404(a) .................................................................................................................1, 4, 6
`
`
`
`
`
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`iii
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`

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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 5 of 21 PageID #: 332
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`Plaintiff, Quest NetTech Corporation (“NetTech” or “Plaintiff”), hereby opposes
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`Defendant Apple Inc.’s (“Apple” or “Defendant”) Motion to Transfer Venue Under 28 U.S.C.
`
`§ 1404(a) (Dkt. No. 20). This motion should be denied because Apple has failed to show that the
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`Northern District of California is clearly more convenient for party witnesses and non-party
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`witnesses, and Apple has not shown that other relevant factors weigh in favor of transfer.
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`I.
`
`INTRODUCTION
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`Apple has failed to meet its burden to show that transferring this action to the Northern
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`District of California is “clearly more convenient” for all parties and witnesses. Focusing only
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`on its own alleged inconvenience, Apple fails to acknowledge that NetTech is a Texas limited
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`liability company with significant ties to the district, including its principal place of business, and
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`has failed to demonstrate any connection between NetTech and the Northern District of
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`California.
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`Apple fails to give credence to its own significant ties to this District and its surrounding
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`areas in Texas. For example, Apple houses its largest campus outside of its California
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`headquarters in Austin, Texas. The Austin campus, a 1.1 million square foot facility, hosts more
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`than 6,000 people who have been reported to house Apple’s business operations for the entire
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`Western Hemisphere. Further, a number of employees at the Austin, Texas campus are
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`dedicated to working on Apple Pay technology, which is central to the Accused Devices in this
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`case. Additionally, numerous Apple employees and ex-employees live within 100 miles of the
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`District in and around Plano, TX. See Exs. 1-4.1 These potential witnesses are likely
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`knowledgeable regarding features of the Accused Products. Apple alleges inconvenience, yet it
`
`
`1 “Ex. _” refers to exhibits attached to the Declaration of Vincent J. Rubino, III in Support of Plaintiff
`Quest Nettech Corporation’s Response in Opposition to Apple Inc.’s Motion to Transfer Venue Under 28 U.S.C. §
`1404(a) (Dkt. 20)
`
`1
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`

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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 6 of 21 PageID #: 333
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`is currently proceeding in at least two pending cases in this District for which it has not moved to
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`transfer.2
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`II.
`
`BACKGROUND
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`A.
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`Plaintiff Quest NetTech Corporation
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`Plaintiff NetTech is the sole and exclusive owner of all right, title, and interest in and to
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`U.S. Reissue Patent 38,137 (the “’137 Patent” or “Patent-in-Suit”). Dkt. 5 ¶ 1; accord
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`Declaration of Jon Scahill (“Scahill Decl.”) ¶ 5. NetTech is a limited liability company
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`organized and existing under the laws of Texas with its principal place of business in this
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`District, located at 100 W. Houston Street, Marshall, Texas. Scahill Decl. ¶¶ 1, 7. Since its
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`incorporation in 2009, NetTech has been involved in numerous patent disputes, retained counsel
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`in this District, and has conducted negotiations and significant licensing business in this judicial
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`district. See Scahill Decl. ¶ 8.
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`NetTech expects to rely on witnesses located in or much closer to this District than to the
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`Northern District of California. Jon Scahill, the CEO of NetTech will be one of NetTech’s
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`primary witnesses. Scahill Decl. ¶¶ 2, 6. Mr. Scahill travels to Marshall often in connection
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`with his work as CEO of NetTech. Scahill Decl. ¶ 9. Mr. Scahill resides in Rye, NY and does
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`not conduct any NetTech business in the state of California. Scahill Decl. ¶ 10. Mr. Scahill
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`possesses highly relevant knowledge regarding the business of NetTech, the valuation of the
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`’137 patent, secondary considerations, and the licensing efforts of NetTech. Scahill Decl. ¶¶ 2,
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`6. All of NetTech’s documents, including documents related to NetTech’s licensing efforts and
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`history, are in the Eastern District of Texas. Scahill Decl. ¶ 8.
`
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`2 See Optis Wireless Tech., LLC v. Apple Inc., No. 2:19-cv-00066 (E.D. Tex.); SEVEN Networks, LLC v. Apple Inc.,
`No. 2:19-cv-00115 (E.D. Tex.).
`
`2
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`Sol H. Wynn, the sole inventor of the Patent-in-Suit, is located in Elk Grove, California,
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`but is a willing third-party witness who has informed NetTech that he is willing to travel to this
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`District for the purposes of this case. Scahill Decl. ¶ 11. Other potential third party witnesses
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`include Mr. Herbert Reichland, a New York resident who is knowledgeable regarding the
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`acquisition of the Patent-in-Suit; Mr. Burton Goldstein, a New York resident who is
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`knowledgeable regarding the licensing efforts of the Patent-in-Suit, and Mr. Max Moskowitz, the
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`patent attorney that prosecuted the reissue application resulting in the Patent-in-Suit. Scahill
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`Decl. ¶ 12. None of these potential third party witnesses are within the subpoena power of the
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`Northern District of California, and New York is much closer to the Eastern District of Texas
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`than to California. Moreover, Mr. Reichland would be willing to travel to the Eastern District of
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`Texas in connection with this case.
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`Apple’s declaration indicates that “external business partners (e.g., financial institutions)”
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`may be relevant to this case. Dkt. 20 at 7. Third parties, including financial institutions such as
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`Citi, Bank of America, Capital One, and JP Morgan Chase & Co. maintain corporate operations
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`in Dallas, Texas. See Ex. 5. Apple concedes that it works with these financial institutions in the
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`implementation of the accused technology including Apple Pay. These financial institutions
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`possess information regarding Apple Pay, including inclusion of credit and debit cards from
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`financial institutions in Apple Pay and Apple Wallet and storage of identifying information and
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`transactions, such as the device-specific numbers and unique transaction codes. See Ex. 6. It is
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`likely that these “external business partners” will have information regarding the underlying
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`transaction information that is relevant at least to damages.
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`B.
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`Apple’s Connections to Texas and this Eastern District of Texas
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`Despite Apple’s assertions to the contrary, its connections to the Eastern District of Texas
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`and its surrounding geographic area are strong. According to publicly-available information,
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`3
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`

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`Apple maintains several regular and established places of business in Texas, including the
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`company’s second largest campus in Austin, Texas with over 6,200 employees. See Ex. 7 at 2
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`(“Apple is proud to bring new investment, jobs and opportunity to cities across the United States
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`and to significantly deepen our quarter-century partnership with the city and people of Austin.”).
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`For many years, Apple has operated retail stores in Plano and Frisco and has recently opened a
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`new store bordering the District in Dallas. Apple also admits that it operates facilities in
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`Lockhart, Dallas, and Garland (Dkt. 20 at 8), and it is likely that many Apple employees who
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`have knowledge of the Accused Products are located in the District, or much closer to the
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`District than to the Northern District of California. Apple’s statement that the Texas facilities
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`“have nothing to do with this lawsuit” is contrary to publicly available information. See Ex. 7
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`at 3 (“Jobs created at the new campus will include a broad range of functions including
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`engineering, R&D, operations, finance, sales and customer support.”). For example, there are a
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`number of Apple employees located at Apple’s Texas campus who work on Apple Pay,
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`including (1) Mark Bennett, a Quality Program Manager for Enterprises including Apple Pay
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`Cash, who has been working in the Austin facility since October 2008; (2) Claire Bradshaw, an
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`Apple Pay Team Manager; (3) Christine McGarvey, an AppleCare Project Manager for Apple
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`Pay; and (4) Jack Senyard, Team Deputy for Apple Pay Fraud Prevention. See Exs. 1-4.
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`III. ARGUMENT
`
`A.
`
`Legal Standard
`
`A motion to transfer venue pursuant to 28 U.S.C. § 1404(a) should be denied unless the
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`defendant sets forth good cause showing how transfer is “clearly more convenient for both
`
`parties involved, non-party witnesses, expert witnesses, and in the interest of justice.” Aloft
`
`Media, LLC v. Adobe Sys., No. 6:07-CV-355, 2008 WL 819956, at *3 (E.D. Tex. Mar. 25, 2008)
`
`(emphasis added); In re Apple Inc., No. 2018-151, Dkt. 20 at 4 (Fed. Cir. Oct. 16, 2018)
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`4
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`

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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 9 of 21 PageID #: 336
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`(“[C]onsidering the convenience of the parties, while the Eastern District of Texas may not be
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`especially convenient for Apple, the Northern District of California would seem equally
`
`inconvenient for AGIS Software.”). This standard “ʽplaces a significant burden on [Defendants]
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`to show good cause for transfer:’ a burden that this Court does not take lightly.” Core Wireless
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`Licensing, S.A.R.L. v. Apple Inc., No. 6:12-cv-100-LED-JDL, 2013 WL 682849, at *3 (E.D. Tex.
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`Feb. 22, 2013) (citing In re Volkswagen of Am., Inc., 545 F.3d 304, 314 n.10 (5th Cir. 2008)
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`(“Volkswagen II”)). “[T]ransfer is inappropriate when it merely serves to shift inconveniences
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`from one party to the other.” CXT Sys., Inc. v. Container Store, Inc., No. 2:18-cv-00173-RWS-
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`RSP, 2019 WL 1506015, at *4 (E.D. Tex. Apr. 5, 2019) (citing Kahn v. Gen. Motors Corp., 889
`
`F.2d 1078, 1083 (Fed. Cir. 1989)).
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`The court must first determine whether the suit could have been brought in the proposed
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`transferee district. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). If
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`the court answers this question affirmatively, it then considers the Fifth Circuit’s private and
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`public interest factors. Id. The private-interest factors include: (1) “the relative ease of access to
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`sources of proof;” (2) “the availability of compulsory process to secure the attendance of
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`witnesses;” (3) “the cost of attendance for willing witnesses;” and (4) “all other practical
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`problems that make a trial case easy, expeditious, and inexpensive.” Id. (citations omitted). The
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`public-interest factors include (1) “the administrative difficulties flowing from court congestion;”
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`(2) “the local interest in having localized interests decided at home;” (3) “the familiarity of the
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`forum with the law that will govern the case;” and (4) “the avoidance of unnecessary problems of
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`conflicts of law[s]. . . . ” Id.
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`Here, Apple has failed to meet its burden to establish that transfer to the Northern District
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`of California is “clearly more convenient” for all parties and witnesses and in the interests of
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`5
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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 10 of 21 PageID #: 337
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`justice, and that transfer would not merely shift the conveniences from one party to another. See
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`Aloft Media, 2008 WL 819956, at *3. Accordingly, NetTech’s choice of forum should be
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`respected. See Volkswagen II, 545 F.3d at 315.3 Additionally, when deciding a motion to
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`transfer venue under § 1404(a), “the court may consider undisputed facts outside of the pleadings
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`such as affidavits or declarations but it must draw all reasonable inferences and resolve factual
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`conflicts in favor of the non-moving party.” AGIS Software Development LLC v. Apple Inc., No.
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`2:17-cv-516-JRG, 2018 WL 2721826, at *2 (E.D. Tex. June 6, 2018).
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`B.
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`The Private Interest Factors Weigh Against Transfer
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`1.
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`Relative Ease of Access to Sources of Proof Weighs Against Transfer
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`For this factor to weigh in favor of transfer, Apple must establish that transfer would
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`result in more convenient access to sources of proof. Id. at *2. Apple asserts that the Northern
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`District of California is more convenient because Apple is headquartered in Cupertino, and the
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`management and primary research and development facilities are in or near Cupertino. Dkt. 20
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`at 11. However, Apple’s own press release reveals that the Austin campus hosts engineering,
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`R&D, operations, finance, sales and customer support activities and employees. Ex. 7 at 3.
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`Accordingly, Apple’s allegations that all the relevant evidence is located in the Northern District
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`of California are unpersuasive given the presence of evidence less than 300 miles from this
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`District at the Austin campus. See Ex. 7. However, this Court has held that “general statements
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`fail to show that transfer would make access to sources of proof more or less convenient for the
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`3 While Apple argues that Fifth Circuit law forbids the treating of plaintiff’s choice of venue as a factor, the Fifth
`Circuit held that plaintiff’s choice is reflected by the defendant’s elevated burden of proof. See Seven Networks, LLC
`v. Google LLC, No. 2:17-cv-00442-JRG, 2018 WL 4026760, at *2 (E.D. Tex. Aug. 15, 2018); see also Volkswagen
`II, 545 F.3d at 314 n. 10 (“Although a plaintiff’s choice of venue is not a distinct factor in the venue transfer
`analysis, it is nonetheless taken into account as it places a significant burden on the movant to show good cause for
`the transfer. Thus, [the court’s] analysis directly manifests the importance that [it] must give to the plaintiff’s
`choice.”). Accordingly, “[u]nless the balance of factors is strongly in favor of the defendant, the plaintiff’s choice in
`forum should be respected.” CXT, 2019 WL 1506015, at *1 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
`(1947) (emphasis added)).
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`6
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`

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`parties.” Core Wireless, 2013 WL 682849, at *3 (concluding that defendant’s statement that
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`“virtually all [defendant] business documents and records relating to the research, design,
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`development, marketing strategy, and product revenue related to the Accused Products are
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`located in or near Cupertino” was too vague to allow the court to weigh factor in the transfer
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`analysis), aff’d In re Apple Inc., 743 F.3d 1377, 1379 (Fed. Cir. 2014). Apple’s assertions are
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`almost identical to the assertions it has made in the Core Wireless which have already been held
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`to be insufficient to warrant transfer. Further, Apple’s allegations regarding unidentified team
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`members and employees located in California do not warrant transfer. See Dkt. 20-1 at ¶¶ 10-13;
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`see also Core Wireless, 2013 WL 682849, at *3 (“The Court gives more weight to those
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`specifically identified witnesses and affords less weight to vague assertions that witnesses are
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`likely located in a particular forum.”); Novelpoint Learning v. Leapfrog Enter., No. 6:10-cv-229,
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`2010 WL 5068146, at *6 (E.D. Tex. Dec. 6, 2010) (stating that the Court “will not base its
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`conclusions on unidentified witnesses”).
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`NetTech has been a Texas Corporation for over a decade. NetTech is incorporated and
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`headquartered in this District, where it maintains all of its corporate records including
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`information relevant to damages such as its prior licensing history. Scahill Decl. at ¶ 8. None of
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`this information is located in California. See Core Wireless, 2013 WL 682849, at *3 (finding
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`Apple failed to consider the relevant sources related to baseband processors that appear to be
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`largely unknown and/or disputed by the parties). Mr. Scahill resides in Westchester County,
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`New York, and has travelled to Marshall for in connection with his work as CEO of NetTech and
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`other sister-companies of NetTech. Scahill Decl. ¶ 9. It is far more inconvenient for Mr. Scahill
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`to fly to the Northern District of California than to travel to Net-Tech’s location in this District.
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`Apple’s bald assertion that NetTech does not appear to have any actual business activities is
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`7
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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 12 of 21 PageID #: 339
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`insufficient to shift this factor in favor of transfer.4 This Court has already found Apple’s
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`similarly thin arguments regarding the business activities of a plaintiff to be unavailing in a
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`recent case. In AGIS Software Development LLC v. Apple, Inc., the Court rejected Apple’s
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`arguments that the plaintiff’s sources of proof should be ignored without “concrete evidence that
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`the business is actually a sham and has no real operations.” 2018 WL 2721826 at *3. Here,
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`Apple cannot allege that NetTech “has no real operations,” because NetTech has operated in the
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`District as a licensing entity since 2009. Accordingly, this factor weighs against transfer. See
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`Seven Networks, 2018 WL 4026760, at *7 (finding factor weighed against transfer, despite In re
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`Genentech’s conclusion that the bulk of evidence will come from the accused infringer, because
`
`of the “probative, but speculative sources of proof identified by [defendant]”).
`
`2.
`
`Availability of Compulsory Process to Secure the Attendance of
`Witnesses Does Not Favor Transfer
`
`The convenience of non-party witnesses is “more important and accorded greater weight
`
`in a transfer of venue analysis” than the convenience of parties. Frito-Lay N. Am. Inc. v.
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`Medallion Foods, Inc., 867 F. Supp. 2d 859, 870-71 (E.D. Tex 2012). The moving party must
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`“specifically identify key witnesses and outline the substance of their testimony.” Arielle, Inc. v.
`
`Monster Cable Prod., Inc., No. 206CV382TJW, 2007 WL 951639, at *2 (E.D. Tex. Mar. 26,
`
`2007).
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`Apple has identified three potential third-party witnesses: (1) the sole inventor of the
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`patent; and (2) two prior art inventors. As shown above, Mr. Wynn is a willing third-party
`
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`4 Apple appears to argue that he acquisition of the patent establishes the ephemerality of the entity. Apple’s
`suggestion that NetTech is an ephemeral entity is unavailing. Without any evidentiary basis, Apple asserts that
`because “[t]he sole Asserted Patent was owned by . . . QPRC until the day before NetTech filed this lawsuit against
`Apple,” NetTech is an ephemeral entity. See AGIS Software Dev. LLC v. Apple Inc., No. 2:17-cv-00516-JRG, 2018
`WL 2721826, at *3 (E.D. Tex. June 6, 2018) (Gilstrap, J.) (rejecting defendant’s argument that plaintiff’s ties to the
`District were ephemeral based on “circumstantial evidence,” such as the timing, the history and the circumstances
`of incorporation and establishment of an office, because the defendant lacked “concrete evidence that the business is
`actually a sham and has no real operations” in this District), mandamus denied, In re Apple, No. 2018-151 (Fed. Cir.
`Oct. 16, 2018).
`
`8
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`

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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 13 of 21 PageID #: 340
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`witness who has informed NetTech that he is willing to travel to this District for the purposes of
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`this case, which negates his distance from Texas and the availability of compulsory process as a
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`factor favoring transfer. See Scahill Decl. ¶ 11; see also Aerielle Inc., 2007 WL 951639, at *2
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`(convenience of witnesses did not support transfer where plaintiff provided affidavits stating that
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`“key” witnesses are willing to travel to Marshall, Texas).
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`Apple has also failed to establish (1) that the prior art inventors would be unwilling to
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`travel to this District; and (2) the importance of their testimony to the issues at trial, merely
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`stating that each have “authored or created relevant prior art.” See Aloft Media, 2008 WL
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`819956, at *5 (holding this factor does not favor transfer where “Adobe simply states that it
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`‘expects to subpoena [these third parties] for prior art information,’ and does not provide any
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`further indication of the content of their testimony.”).
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`While Apple states that the prosecuting attorney, Max Moskowitz, is a material third-
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`party witness, Apple fails to explain how a potential third party living in New York could weigh
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`in favor of transfer to the Northern District of California. Instead, Mr. Moskowitz’s presence in
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`New York weighs against transfer because New York is far closer to Marshall, Texas than to the
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`Northern District of California. Additionally, there are at least two other witnesses living in New
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`York: Mr. Reichland, who is knowledgeable regarding the acquisition of the Patent and business
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`dealings between Quest and Mr. Wynn, and Mr. Goldstein, who is knowledgeable regarding the
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`licensing efforts related to the ’137 Patent. Scahill Decl. ¶ 12. Mr. Reichland is willing to travel
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`to this District to testify in connection with this case. Scahill Decl. ¶ 12. Further, the Eastern
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`District of Texas is closer to New York than the Northern District of California.
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`Apple identifies the Apple Pay Product Architecture team at Apple who interfaces with
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`“external business partners (e.g., financial institutions).” Dkt. 20 at 7. These third party
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`9
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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 14 of 21 PageID #: 341
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`financial institutions, including Citi, Bank of America, Capital One, and JP Morgan Chase & Co.
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`maintain corporate operations in Dallas, Texas and possess relevant information regarding Apple
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`Pay and Apple Wallet, including inclusion of credit and debit cards from financial institutions in
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`Apple Pay and Apple Wallet and storage of identifying information and transactions, such as the
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`device-specific numbers and unique transaction codes, which is relevant to infringement in this
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`case. See Ex. 6. Accordingly, Apple has not met its burden to demonstrate that this factor
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`weighs in favor of transfer. See Aloft Media, 2008 WL 819956, at *5 (“Adobe has not met its
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`burden of showing that any compulsory process available in the Northern District of California
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`would aid in the convenience of procuring non-party witnesses.”); see also AGIS Software
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`Development LLC v. HTC Corp., No. 2:17-cv-00514-JRG, 2018 WL 4680558, at *9 (E.D. Tex.
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`Sept. 28, 2018) (“While at first blush it appears that HTC has identified more witnesses, the
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`Court gives little or no weight to several of them.”).
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`3.
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`The Cost of Attendance for Willing Witnesses Weighs Against
`Transfer
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`The cost of attendance for willing witnesses also weighs against transfer. “In considering
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`the availability and convenience of witnesses, a court must concentrate primarily upon the
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`availability and convenience of key witnesses.” Frito-Lay N. Am., Inc., 867 F. Supp. 2d at 870
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`(emphasis added). NetTech is incorporated and headquartered in this District, and Apple is
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`located in California. See Abatix Corp. v. Capra, No. 2:07-cv-541, 2008 WL 4427285, at *6
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`(E.D. Tex. Sept. 24, 2008) (finding factor neutral where plaintiff had a principal place of
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`business in Dallas and a server in Allen, Texas, and the defendants worked and resided in
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`California); see also Aloft Media LLC, 2008 WL 819956, at *6 (“It is presumed in this district
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`that the present forum is convenient for a plaintiff that has chosen to file here.”).
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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 15 of 21 PageID #: 342
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`Here, NetTech expects its key witnesses at trial to include Mr. Jon Scahill, the company’s
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`CEO, who maintains an office in the District. In contrast, Apple has unilaterally selected “Apple
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`relevant employees [who] work in the Northern District of California,” but summarily dismisses
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`the notion that there may be potential witnesses in Texas, far closer to the Eastern District of
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`Texas than to the Northern District of California, who may have relevant information regarding
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`the research, design, development, marketing, or sales of the Accused Products. See Ex. 7 at 3
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`(stating that jobs at the Austin campus will include jobs in engineering, R&D, operations,
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`finance, sales and customer support).
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`A basic investigation reveals that several Apple employees who are likely to have
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`information relevant to this case are located in Austin, Texas, including, for example: (1) Mark
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`Bennett, a Quality Program Manager for Enterprises including Apple Pay Cash, who has been
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`working in the Austin facility since October 2008; (2) Claire Bradshaw, an Apple Pay Team
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`Manager; (3) Christine McGarvey, an AppleCare Project Manager for Apple Pay; and (4) Jack
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`Senyard, Team Deputy for Apple Pay Fraud Prevention. See Exs. 1-4. The few examples of
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`employees affiliated with Apple Pay located in Texas demonstrates that the presence of relevant
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`employees who work from the Austin facility and additionally, the presence of relevant
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`information. Accordingly, this factor does not weigh in favor of transfer.
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`4.
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`All Other Practical Problems Weigh Against Transfer
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`Parties have already begun conferring with regard to discovery, including entry of a
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`discovery order, docket control order, and a protective order. Nonetheless, given that limited
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`discovery has taken place, this factor is neutral.5
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`C.
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`The Public Interest Factors Weigh Against Transfer
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`5 In support of its argument, Apple cites to a case that held that where limited discovery has taken place, this factor
`is neutral, yet nonsensically reaches the conclusion that this factor “slightly favors transfer.”
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`11
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`Case 2:19-cv-00118-JRG Document 33 Filed 07/19/19 Page 16 of 21 PageID #: 343
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`1.
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`Local Interest Weighs Against Transfer
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`This District has a local interest in this dispute because NetTech is a Texas entity,
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`maintains its headquarters in this District, and has operates out of this district. See Scahill Decl.
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`at ¶ 7. Apple maintains its second largest campus in the nation in Texas, which employs
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`thousands of Texas residents who live and work in and around this District, further strengthening
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`the localized interest of this District. Ex. 7 at 3. Further, where, like here, “the accused products
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`have been sold or offered for sale throughout the country, the alleged injury does not create a
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`substantial local interest in any particular district.” CXT, 2019 WL 1506015, at *5; see Aloft
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`Media, 2008 WL 819956, at *8 (holding in a patent infringement action involving products sold
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`nationwide that neither forum had greater stake in the outcome of the litigation and that this
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`factor was neutral and did not weigh in favor of transfer). Thus, this factor weighs against
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`transfer.
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`2.
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`Court Congestion Weighs Against Transfer
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`Apple admits that the median time to trial does not favor transfer. Taking into
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`consideration the trial schedule, this factor weighs against transfer. Trial is set in this case for
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`September 2020. Based on the median and average time to trial statistics, trial would occur
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`between one and two years later (respectively) if the case were transferred. See Dkt. 20 at 16;
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`Dkt. 20-8; Dkt. 30. Accordingly, this factor weighs