Case 2:19-cv-00118-JRG Document 53 Filed 11/27/19 Page 1 of 12 PageID #: 739
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CIVIL ACTION NO. 2:19-CV-00118-JRG
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`MEMORANDUM OPINION AND ORDER
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`QUEST NETTECH CORPORATION,
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`v.
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`APPLE, INC.,
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`Plaintiff,
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`Defendant.
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`Before the Court is Defendant Apple, Inc.’s (“Apple”) Motion to Transfer Venue Under
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`28 U.S.C. § 1404(a) (the “Motion”). (Dkt. No. 20.) In the Motion, Apple requests that this Court
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`transfer the above-captioned case under 28 U.S.C § 1404(a) from the Eastern District of Texas to
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`the Northern District of California. Having considered the Motion and for the reasons set forth
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`herein, the Court is of the opinion that the Motion should be and hereby is DENIED.
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`I.
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`BACKGROUND
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`A. The Asserted Patent
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`This case involves one patent—United States No. RE 38,137 (the “’137 Patent”) issued on
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`June 10, 2003 with a filing date of September 28, 1995. The ’137 Patent is entitled “Programmable
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`Multiple Company Credit Card System.” The sole inventor of the ’137 Patent is Sol H. Wynn,
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`who is a resident of Elk Grove, California (a town less than 100 miles from San Francisco)1. (Dkt.
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`No. 20 at 4; Dkt No. 33 at 3.) In addition, the prosecuting attorney that helped Mr. Wynn secure
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`the ’137 Patent is a Mr. Max Moskowitz, who has a listed business address in New York. (Dkt.
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`No. 20 at 5.) Plaintiff Quest NetTech (“NetTech”) became the sole and exclusive owner of the
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`1 According to a declaration by Mr. Jon Scahill (CEO of NetTech), Mr. Wynn has indicated that he is willing to
`voluntarily travel to the Eastern District of Texas. (Dkt. No. 33-2 at ¶ 11.).
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`’137 Patent when it merged with Wynn Technologies, Inc. on April 11, 2019. (Id. at 4.) NetTech
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`has not sued any other parties for infringement of the ’137 Patent. (Id. at 1.)
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`B. The Instant Lawsuit
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`NetTech filed its complaint against Apple on April 12, 2019, (the “Complaint”) asserting
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`that Apple’s “Apple Pay functionality” implemented through Apple Wallet on such devices as the
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`iPhone 6 with Apple iOS 8 or 9 (the “Accused Products”) infringes the ’137 Patent. (Dkt. No. 5 at
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`¶ 12; Dkt. No. 20 at 2.) Apple has yet to file an Answer but has filed a Motion to Dismiss under
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`Fed. R. Civ. P. 12(b)(6) for failure to state a claim, in addition to this Motion to Transfer Venue
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`Under 28 U.S.C. § 1404(a). (See Dkt. No. 19; Dkt. No. 20.)
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`C. Quest NetTech Corporation
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`NetTech is a limited liability company organized and existing under the laws of Texas.
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`(Dkt. No. 33 at 2.) NetTech’s principal place of business is located in this District in Marshall,
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`Texas. (Id.) Over the last decade, NetTech has been involved in numerous patent disputes in this
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`District since its incorporation in 2009. (Id.) The sole manager of NetTech is Jon Scahill, a New
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`York resident who regularly travels to this District on business for NetTech. (Id.) According to
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`NetTech, Mr. Scahill will be a primary witness in this case as he “possesses highly relevant
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`knowledge regarding the business of NetTech, the valuation of the ’137 Patent, secondary
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`considerations, and the licensing efforts of NetTech.” (Id.) Furthermore, according to NetTech, all
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`of its documents are located in this District. (Id.) NetTech, however, has no fixed employees whose
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`designated place of work is within this District, though such is no longer uncommon in today’s
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`world of tele-working. (Dkt. No. 20 at 4.)
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`2
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`D. Apple, Inc.
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`Apple is a California corporation with its principal place of business in Cupertino,
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`California, in the Northern District of California. (Dkt. No. 1 at ¶2.) According to Apple, Apple’s
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`primary research and development facilities are located in the Northern District of California. (Dkt.
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`No. 20 at 2.) In addition, Apple employs several thousand people in the Northern District of
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`California. (Id.) Furthermore, according to Apple, certain of its employees who are knowledgeable
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`as to the Accused Products are located in and around the Cupertino area.2 (Id.) Finally, according
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`to Apple, the relevant documents, source code, and other evidence that relate to the Accused
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`Products are located in the Northern District of California. (Id.)
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`Apple no longer has facilities in the Eastern District of Texas though it had two retail stored
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`in this District when the complaint was filed.3 (Id. at 4.) Apple, however, presently has facilities
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`(both retail and non-retail) in other districts in Texas. (Dkt. No. 33 at 4.) Apple has a campus in
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`Austin, Texas—which is in the Western District of Texas—with over 6,200 employees where
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`Apple conducts “a broad range of functions including engineering, R&D, operations, finance, sales
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`and customer support.” (Id.) In addition, Apple operates facilities in Dallas and Garland—which
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`are located in the Northern District of Texas. (Id.) According to NetTech (and based on LinkedIn
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`search results), there are several Apple employees that work on the Apple Pay systems that work
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`2 For example, Mr. Glen Steele, who leads the Apple Wallet Engineering team for iOS, is located in the Northern
`District of California. (Dkt. No. at 2–3.) In addition, Mr. Chris Sharp, who is the Director of Engineering in the
`Apple Pay Server Engineering group and who was involved in the design and development of Apple Wallet, is also
`located in the Northern District of California. (Id. at 3.) Further, Mr. David Brudnicki the head of the Apple Pay
`Product Architecture team at Apple is also located in the Northern District of California. (Id.) Also, Mr. Baris
`Cetinok, the Senior Director of Product Marketing at Apple with responsibilities for Apple Wallet and Apple Pay,
`is also located in the Northern District of California. (Id.)
`3 At the time this suit was filed, Apple had two retail stores in the Eastern District of Texas. However, these retail
`stores were closed the day after this suit was filed.
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`3
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`in Apple’s Austin campus. (Id.) Apple, however, disputes that these employees have information
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`that would be relevant to this case.4
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`II.
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`LEGAL STANDARD
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`If venue in the district in which the case is originally filed is proper, the court may
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`nonetheless transfer a case based on “the convenience of parties and witnesses” to “any other
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`district or division where it might have been brought or to any district or division to which all
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`parties have consented.” 28 U.S.C. § 1404(a). The threshold inquiry when analyzing eligibility for
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`§ 1404(a) transfer is “whether the judicial district to which transfer is sought would have been a
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`district in which the claim could have been filed.” In re Volkswagen AG, 371 F.3d 201, 203 (5th
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`Cir. 2004) [hereinafter Volkswagen I]. As such, to prove that transfer is proper, the movant must
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`establish that, as of the time of filing, each party “would have been amenable to process in . . . the
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`transferee court” and that “venue as to all [parties] would have been proper [there].” See Liaw Su
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`Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1148 (5th Cir. 1984), overruled on other grounds
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`by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir. 1987); accord Hoffman v.
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`Blaski, 363 U.S. 335, 342–44 (1960).
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`Once this initial threshold has been met, courts determine whether the case should be
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`transferred by analyzing various public and private factors. See Humble Oil & Ref. Co. v. Bell
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`Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963); accord In re Nintendo Co., Ltd., 589 F.3d
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`1194, 1198 (Fed. Cir. 2009). The private factors are: (1) the relative ease of access to sources of
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`proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost
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`of attendance for willing witnesses; and (4) all other practical problems that make trial of a case
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`easy, expeditious, and inexpensive. Volkswagen I, 371 F.3d at 203 (citing Piper Aircraft Co. v.
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`4 Apple claims that it has confirmed with the employees in Austin that NetTech named that these employees had “no
`involvement in the design, development, implementation, or marketing of Apple Pay.” (Dkt. No. 43 at 2–3.)
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`4
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`Reyno, 454 U.S. 235, 241 n.6 (1981)). The public factors are: (1) the administrative difficulties
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`flowing from court congestion; (2) the local interest in having localized interests decided at home;
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`(3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of
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`unnecessary problems of conflict of laws or in the application of foreign law. Id. These factors are
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`to be decided based on “the situation which existed when suit was instituted.” Hoffman, 363 U.S.
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`at 343. Though the private and public factors apply to most transfer cases, “they are not necessarily
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`exhaustive or exclusive,” and no single factor is dispositive. In re Volkswagen of Am., Inc., 545
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`F.3d 304, 314–15 (5th Cir. 2008) [hereinafter Volkswagen II].
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`To prevail on a motion to transfer under § 1404(a), the movant must show that the
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`transferee venue is “clearly more convenient” than the venue chosen by the plaintiff. Id. at 315;
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`accord In re Apple Inc., 456 F. App’x 907, 909 (Fed. Cir. 2012) (holding that a movant must “meet
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`its burden of demonstrating [] that the transferee venue is ‘clearly more convenient.’”) (internal
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`citation omitted). Absent such a showing, plaintiff’s choice of venue is to be respected.
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`Volkswagen II, 545 F.3d at 315. When deciding a motion to transfer under § 1404(a), the court
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`may consider undisputed facts outside of the pleadings such as affidavits or declarations, but it
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`must draw all reasonable inferences and resolve factual conflicts in favor of the non-moving party.
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`See Sleepy Lagoon, Ltd., v. Tower Grp., Inc., 809 F. Supp. 2d 1300, 1306 (N.D. Okla. 2011); see
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`also Cooper v. Farmers New Century Ins. Co., 593 F. Supp. 2d 14, 18–19 (D.D.C. 2008).
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`III. DISCUSSION
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`A. This Action Could Have Been Filed in the Northern District of California.
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`As a threshold matter, it must be determined whether NetTech could have initiated this suit
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`in the Northern District of California. See Volkswagen I, 371 F.3d at 203. Apple is a California
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`corporation with its headquarters in the Northern District of California. The Court finds that this
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`5
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`action could have properly been filed in the Northern District of California. As such the threshold
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`requirement for transfer under § 1404(a) has been satisfied. See 28 U.S.C. § 1400(b).
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`B. The Private and Public Interest Factors do not Collectively Weigh in Favor of
`Transfer.
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`1) Private Transfer Factors
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`a) Relative Ease of Access to Sources of Proof
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`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, is stored. Volkswagen II, 545
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`F.3d at 316. Despite technological advances in transportation of electronic documents, physical
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`accessibility to sources of proof continues to be a private interest factor to be considered. See
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`Volkswagen II, 545 F.3d at 316. For this factor to weigh in favor of transfer, Apple must show that
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`transfer to the Northern District of California will result in more convenient access to sources of
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`proof. See Diem LLC v. BigCommerce, Inc., No. 6:17-cv-186, 2017 WL 6729907, at *2 (E.D. Tex.
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`Dec. 28, 2017).
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`Since Apple’s headquarters and primary research and development facilities are in the
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`Northern District of California, Apple alleges that all the relevant documents and evidence relating
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`to the “operation, structure, function, marketing, and sales of the Accused Products” are located in
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`the Northern District of California. (Dkt. No. 20 at 7.) Apple also argues that this factor materially
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`favors transfer because usually the defendant has the majority of the documents. (Id. (citing On
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`Semiconductor Corp. v. Hynix Semiconductor, Inc., No. 6:09-CV-390, 2010 WL 3855520, at *4
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`(E.D. Tex. Sept. 30, 2010).) In addition, Apple alleges that some potentially relevant third-party
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`witnesses (e.g., two inventors named on one piece of prior art that Apple has identified) are located
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`in the Northern District of California. (Dkt. No. 20 at 8.)
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`6
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`In response, NetTech alleges that it keeps all of its records—including documents “relevant
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`to damages”—in its headquarters in Marshall. (Dkt. No. 33 at 7.) In addition, NetTech alleges that
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`Mr. Scahill frequently travels to Marshall and thus it is far more convenient for him to travel to
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`this District than to fly to the Northern District of California. (Id.)
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`Considering the facts of this case, the Court finds that this factor is in favor of transferring
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`to the Northern District of California. However, given the realities of today’s digital world where
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`what once would have been boxes and boxes of documents can now be delivered with the click of
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`a mouse this factor’s weight is at most minimal. No one seriously doubts that Apple’s relevant
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`documents are digitized and readily deliverable by electronic means.
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`b) The Availability of a Compulsory Process to Secure the
`Attendance of Witnesses
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`The second private factor instructs the Court to consider the availability of compulsory
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`process to secure the attendance of witnesses, particularly non-party witnesses whose attendance
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`may need to be secured by court order. In re Volkswagen II, 545 F.3d at 216. The Court gives more
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`weight to those specifically identified witnesses and affords less weight to vague assertions that
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`witnesses are likely located in a particular forum. See Novelpoint Learning v. Leapfrog Enter., No.
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`6:10-cv-229, 2010 WL 5068146, at *6 (E.D. Tex. Dec. 6, 2010).
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`The only third-parties identified as likely witnesses whose susceptibility to being
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`subpoenaed to appear at trial are the inventor (Mr. Wynn), his prosecuting attorney (Mr.
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`Moskowitz), and two inventors named on a different patent that Apple has identified as “relevant
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`prior art” (Mr. Christopher B. Wright and Mr. Stephen Bristow). (Dkt. No. 20 at 4–5.) Mr.
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`Moskowitz resides in New York, which is outside the subpoena range of both the Eastern District
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`of Texas and the Northern District of California. (Id. at 4.) However, if he were willing to appear
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`7
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`voluntarily, doing so from New York makes the Eastern District of Texas obviously more
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`convenient.
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`Mr. Wynn is within the subpoena range of the Northern District of California, but a clear
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`representation has been made to the Court that he is willing to appear in the Eastern District of
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`Texas voluntarily for trial. (Dkt. No. 33 at 3.) Given this representation, the fact that he is subject
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`to subpoena power in the Northern District of California and not in this District is neutralized. See
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`C&J Spec Rent Servs., Inc. v. LEAM Drilling Sys., LLC, No. 2:19-cv-00079, 2019 WL 3017379,
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`at *3 (E.D. Tex. July 10, 2019).
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`The named inventors on the prior art identified by Apple are located within the subpoena
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`range of the Northern District of California. (Dkt. No. 20 at 9.) However, there is no clear
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`indication that these witnesses will be relevant merely because they authored prior art and Apple
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`provided nothing further to show their relevance.5 Nor is there any clear indication that these
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`witnesses would be unwilling to travel to the Eastern District of Texas. As such, Apple has not
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`shown that the availability of a compulsory process to compel these two individuals to appear in
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`this case will be of import. See Arielle, Inc. v. Monster Cable Prod., Inc., No. 2:06-cv-382, 2007
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`WL 951639, at *2 (E.D. Tex. Mar. 26, 2007) (“The moving party must ‘specifically identify key
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`witnesses and outline the substance of their testimony.’”) (quoting Hupp v. Siroflex of America,
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`Inc., 848 F.Supp. 744, 749 (S.D.Tex.1994); see also 15 ARTHUR R. WRIGHT, FEDERAL PRACTICE
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`& PROCEDURE § 3851 (4th ed. 2019). Consequently, the Court finds that this factor is neutral.
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`5 Having filed no answer in this case, Apple has yet to formally claim such prior art as part of its invalidity contentions.
`Given the early nature of these assertions, it is far from certain that such prior art will be ultimately relevant to any
`invalidity case which Apple might assert in the future.
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`c) Cost of Attendance for Willing Witnesses
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`In analyzing this factor, all parties and witnesses must be considered. Volkswagen I, 371
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`F.3d at 204. “The convenience of the witnesses is probably the single most important factor in a
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`transfer analysis.” In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009) (quoting Neil Bros.
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`Ltd. v. World Wide Lines, Inc., 425 F. Supp. 2d 325, 329 (E.D.N.Y. 2006). “When the distance
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`between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more than
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`100 miles, the factor of inconvenience to witnesses increases in direct relationship to the additional
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`distance to be traveled.” Id. at 1343 (citing Volkswagen II, 545 F.3d at 317). Furthermore, in
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`analyzing this factor, clearly more weight is properly given to non-party witnesses than to party
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`witnesses. AGIS Software Dev. LLC v. Apple, Inc., No. 2:17-cv-00516-JRG, 2018 WL 2721826,
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`at *7 (E.D. Tex. June 6, 2018) (citing Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F. Supp.
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`2d 859, 870–71 (E.D. Tex. 2012)).
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`Considering the facts of this case, the Court finds that the bulk of the specific persons
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`identified by Apple, while living in the Northern District of California, are each among its
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`employees, and thus subject to its control. (Dkt. No. 20 at 2–3.) In addition, Apple has identified
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`no willing third-party individuals.6 The only named willing third-party at this stage in this case is
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`Mr Wynn, the inventor of the asserted patent, whom NetTech has represented is willing to travel
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`to this District.7 (Dkt. No. 33 at 3.) On the other hand, NetTech has named no employees based
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`within this District. The only employee that NetTech has identified is Mr. Scahill who travels to
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`this District “often” but resides in New York. (Id. at 2.) The Court notes that almost all of the
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`6 Apple has identified third-party witnesses. However, aside from the inventor of the Asserted Patent who has
`expressed he is willing to travel to this District, Apple has not represented that the other third-parties are willing or
`unwilling to travel but has merely named them. The Court should not be left to guess whether or not a third-party
`inventor is willing to travel as necessary to testify. However, if it must guess, the Court resolves such factual
`uncertainty in favor of the non-movant.
`7 Given that its source is from officers of this Court, the Court properly relies on this representation by NetTech’s
`counsel.
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`witnesses Apple identifies are willing or controlable party witnesses. As a result, this factor weighs
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`only slightly in favor of transfer. See AGIS Software, 2018 WL 2721826, at *7 (holding that in
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`analyzing this factor more weight is given to non-party witnesses than to party witnesses); see also
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`J2 Global Communications, Inc. v. Protus IP Solutions, Inc., 6:08-cv-00262, 2008 WL 5378010,
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`*3 (E.D. Tex. Dec. 23, 2008); Carr v. Ensco Offshore Co., G-06-629, 2007 WL 760367, *2 (S.D.
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`Tex. Mar. 8, 2007); 15 ARTHUR R. WRIGHT, FEDERAL PRACTICE & PROCEDURE § 3851 (4th ed.
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`2019) (“[T]he convenience of witnesses who are employees of a party is entitled to less weight
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`because that party can obtain their presence at trial.”).
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`d) Other Practical Problems
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`Practical problems include those that are rationally based on judicial economy. Particularly,
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`the existence of duplicative suits involving the same or similar issues may create practical
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`difficulties that will weigh heavily in favor or against transfer. Eolas Techs., Inc. v. Adobe Sys.,
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`Inc., No. 6:09-cv-446, 2010 WL 3835762, at *6 (E.D. Tex. Sept. 28, 2010), aff’d In re Google,
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`Inc., 412 F. App’x. 295 (Fed. Cir. 2011). Considering the facts of this case, the Court finds that
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`this factor is neutral.
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`2) Public Transfer Factors
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`a) Administrative Difficulties Flowing from Court Congestion
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`The median time to trial in patent cases is shorter in this District than in the Northern
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`District of California. (Dkt. No. 20 at 12.) Accordingly, the Court finds that this factor weighs
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`against transfer.
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`b) Local Interest in Having Localized Interests Decided at Home
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`The Fifth Circuit has explained that “[j]ury duty is a burden that ought not to be imposed
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`upon the people of a community which has no relation to the litigation.” In re Volkswagen I, 371
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`F.3d at 206. Local interests that “could apply virtually to any judicial district or division in the
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`United States” are disregarded in favor of particularized local interests. In re Volkswagen II, 545
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`F.3d at 318. Considering the location of both parties and the facts, the Court finds that this factor
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`is neutral.
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`c) Familiarity of the Forum with Governing Law and Avoidance of
`Unnecessary Conflicts of Law
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`Both parties agree that the last two factors are neutral. (Dkt. No. 20 at 12; Dkt. No. 33 at
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`13.) Accordingly, the Court finds that these two remaining factors are neutral.
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`3) Weighing of the Factors
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`In view of the foregoing factors, the Court must determine whether the Northern District
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`of California is “clearly more convenient” than the Eastern District of Texas. The Fifth Circuit has
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`been careful to emphasize that district courts should not merely engage in a “raw counting”
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`exercise which tallies up the factors favoring transfer and the factors militating against transfer. In
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`re Radmax, 720 F.3d 285, 290 n.8 (“We do not suggest—nor has this court held—that a raw
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`counting of the factors in each side, weighing each the same and deciding transfer only on the
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`resulting ‘score,’ is the proper methodology.”). Instead, the Court must make factual
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`determinations to ascertain the degree of actual convenience, if any, and whether such rises to the
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`level of “clearly more convenient.” See id. Where the present and proposed forums are both
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`roughly similar in terms of convenience, courts should not conclude that the proposed transferee
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`forum is “clearly more convenient.” Volkswagen II, 545 F.3d at 315. While this Court does not
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`hold that “clearly more convenient” is equal to “clear and convincing,” a movant must show
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`materially more than a mere preponderance of convenience, lest the standard have no real or
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`practical meaning. See id. When carefully applying the convenience factors and the related factual
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`arguments in each unique case, courts should be careful not to lose sight of the plaintiff’s choice
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`of forum and its historical significance in our jurisprudence. Id. (“[W]when the transferee venue
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`is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s choice should
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`be respected.”). Having weighed the foregoing factors, the Court concludes that the Northern
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`District of California is not “clearly more convenient.”
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`IV. CONCLUSION
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`In conclusion, considering the weight of the factors and the facts of this case, the Court is
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`of the opinion that Apple’s Motion to Transfer Venue Under 29 U.S.C. § 1404(a) (Dkt. No. 20)
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`should be and hereby is DENIED. Further, in light of the above holding, Apple’s Unopposed
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`Motion for Oral Hearing (Dkt. No. 50) is hereby DENIED.
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`12
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 27th day of November, 2019.
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