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`813
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
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`§
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`§
`§
`§
`§
`§
`§
`§
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`Plaintiff,
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`NORTHSTAR SYSTEMS LLC,
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`
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`v.
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`VOLKSWAGEN AG,
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`
`
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`Defendant,
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`BAYERISCHE MOTOREN WERKE AG,
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`
`
`
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`Defendant.
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`
`
`CIVIL ACTION NO. 2:22-CV-00486-JRG
`(LEAD CASE)
`FILED UNDER SEAL
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`
`
`
`
`
`CIVIL ACTION NO. 2:22-CV-00496-JRG
`(MEMBER CASE)
`
`§
`§
`§
`§
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`MEMORANDUM OPINION AND ORDER
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`I.
`
`INTRODUCTION
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`Before the Court is Volkswagen AG’s (“VWAG”) Motion to Dismiss for Failure to State
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`a Claim Under Rule 12(b)(6) or, in the Alternative, Transfer Venue Pursuant to 28 U.S.C. §
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`1404(a) (the “Motion”). (Dkt. No. 11.) Plaintiff NorthStar Systems LLC (“NorthStar”) opposes
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`the Motion. (See Dkt. No. 32.) For the following reasons, the Court finds that the Motion should
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`be GRANTED under 12(b)(6), DENIED under 28 U.S.C. § 1404(a), and that NorthStar should
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`be GRANTED leave to amend the complaint.
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`II. BACKGROUND
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`NorthStar filed suit against VWAG on December 22, 2022. (Dkt. No. 1.) The complaint
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`alleges that Volkswagen directly and indirectly infringes five patents—U.S. Patent Nos. 6,898,432
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`(the “’432 Patent”), 8,014,943 (the “’943 Patent”), 8,032,297 (the “’297 Patent”), 8,478,527 (the
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`“’527 Patent”), and 8,805,416 (the “’416 Patent”) (collectively, the “Patents-in-Suit”). (Id. at ¶¶
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`

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`814
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`7–11.) The ’432 Patent, and ’416 Patent have expired. The complaint only asserts infringement of
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`method claims. (Dkt. No. 11 at 3.)
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`Plaintiff NorthStar is a Texas limited liability company based in Marshall, Texas. (Dkt.
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`No. 1 at ¶ 1.) VWAG is a German corporation based in Germany. (Id. at ¶ 2.) Volkswagen Group
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`of America (“VWGoA”) is a U.S. subsidiary of VWAG. (Dkt. No. 11 at 1.) Volkswagen of
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`America, Inc. (“VWA”) is an operating unit of Volkswagen Group of America. (Dkt. No. 1 at ¶
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`65, n. 9.)
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`III. LEGAL STANDARD
`
`A. Motion to Dismiss
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`Under the Federal Rules of Civil Procedure, a complaint must include “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
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`Court can dismiss a complaint that fails to meet this standard. Fed. R. Civ. P. 12(b)(6). To survive
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`dismissal at the pleading stage, a complaint must state enough facts such that the claim to relief is
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`plausible on its face. Thompson v. City of Waco, 764 F.3d 500, 502 (5th Cir. 2014) (quoting Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff
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`pleads enough facts to allow the Court to draw a reasonable inference that the defendant is liable
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`for the misconduct alleged. Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court
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`accepts well-pleaded facts as true and views all facts in the light most favorable to the plaintiff but
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`is not required to accept the plaintiff’s legal conclusions as true. Id. “[A] complaint attacked by a
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`Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” Twombly, 550 U.S. at
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`555.
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`In the Fifth Circuit, motions to dismiss under Rule 12(b)(6) are viewed with disfavor and
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`are rarely granted. Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Lowrey v.
`2
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`815
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`Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). “The court may consider ‘the complaint,
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`any documents attached to the complaint, and any documents attached to the motion to dismiss
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`that are central to the claim and referenced by the complaint.’” Script Sec. Sols. L.L.C. v.
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`Amazon.com, Inc., 170 F. Supp. 3d 928, 935 (E.D. Tex. 2016) (quoting Lone Star Fund V (U.S.)
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`L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
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`B. Transfer Under 28 U.S.C. § 1404(a)
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`“For the convenience of parties and witnesses, in the interest of justice, a district court may
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`transfer any civil action to any other district or division where it may have been brought.” 28
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`U.S.C. § 1404(a). The question of whether a suit “might have been brought” in the transferee forum
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`encompasses subject matter jurisdiction, personal jurisdiction, and propriety of venue. Viking
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`Technologies, LLC v. Assurant, Inc., 2021 WL 3520756, at *1 (E.D. Tex. June 21, 2021) (quoting
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`Hoffman v. Blaski, 363 U.S. 335, 343–44 (1960)). If this threshold burden is satisfied, the party
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`seeking transfer must then establish that transfer is warranted in the interest of convenience.
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`In evaluating a motion to transfer pursuant to § 1404(a), the Court considers the Fifth
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`Circuit’s non-exhaustive list of private and public interest factors. In re Volkswagen AG, 371 F.3d
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`201, 203 (5th Cir. 2004) (Volkswagen I). The private interest factors include: (1) “the relative ease
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`of access to sources of proof;” (2) “the availability of compulsory process to secure the attendance
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`of witnesses;” (3) “the cost of attendance for willing witnesses;” and (4) “all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” (Id.) The public interest
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`factors include: (1) “the administrative difficulties flowing from court congestion;” (2) “the local
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`interest in having localized interests decided at home;” (3) “the familiarity of the forum with the
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`law that will govern the case;” and (4) “the avoidance of unnecessary problems of conflict of laws
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`of the application of foreign law.” (Id.)
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`3
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`816
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`While a plaintiff’s choice of venue is not an express factor in this analysis, the appropriate
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`deference afforded to the plaintiff’s choice is reflected in a defendant’s elevated burden of proof. In
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`re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (Volkswagen II). To support its
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`claim for a transfer under § 1404(a), the defendant must demonstrate that the transferee venue is
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`“clearly more convenient” than the venue chosen by the plaintiff. (Id.) (emphasis added). Absent
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`such a showing, however, the plaintiff’s choice is to be respected. (Id.)
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`IV. ANALYSIS
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`A. Motion to Dismiss
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`i. Direct Infringement
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`VWAG argues that NorthStar has failed to assert a plausible claim of direct infringement
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`because NorthStar has not alleged that VWAG practices the method claims. (Dkt. No. 11 at 7–8
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`(citing i4i Ltd. P’ship. v. Microsoft Corp., 598 F.3d 831, 850 (Fed. Cir. 2010) (emphasis added),
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`aff’d, 564 U.S. 91 (2011) (“Direct infringement occurs only when someone performs the claimed
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`method.”)).) Further, VWAG argues that to the extent that NorthStar accuses VWAG of using the
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`accused products in an infringement manner, it does not make factual allegations that VWAG does
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`so in the United States as required by 35 U.S.C. § 271(a). (Id. at 8.) Even under the most charitable
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`reading of the complaint, VWAG contends, NorthStar’s only factual allegation of use concerns
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`VWA, which is separate from VWAG. (Id. at 9.)
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`In response, NorthStar contends that it sufficiently alleged that VWAG uses infringing
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`technology and references documents showing how the Patents-in-Suit are infringed by VWAG.
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`(Dkt. No. 32 at 7–8.) NorthStar further contends that it alleges that VWAG uses the infringing
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`technology “in the United States.” (Id. at 8.) Moreover, NorthStar argues that it alleges that VWAG
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`4
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`817
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`does business in Texas and in the Eastern District of Texas directly or through intermediaries. (Id.
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`at 9.)
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`In reply, VWAG argues that NorthStar’s complaint does not go beyond conclusory
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`allegations that VWAG “uses” the accused technology. (Id. at 1–2.) Moreover, VWAG argues that
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`any additional facts alleged by NorthStar in its response should not be considered by the Court
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`because they are outside the four corners of the complaint. (Id. at 3.)
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`In sur-reply NorthStar argues that the documents it attached to its response show that VW
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`operates in the United States. (Dkt. No. 46 at 1–2)
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`The Court finds that the direct infringement claims should be dismissed but that leave to
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`amend should be granted. VWAG argues that NorthStar does not sufficiently allege that VWAG
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`uses the infringing technology in the United States. NorthStar alleges “[u]pon information and
`
`belief, VW[AG] does business in Texas and in the Eastern District of Texas, directly or through
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`intermediaries.” (Dkt. No. 1 at ¶ 2.) Further, for each count of infringement, NorthStar alleges:
`
`[VWAG] has and continues to directly infringe the [individual patent], either
`literally or under the doctrine of equivalents, without authority and in violation of
`35 U.S.C. § 271, by making, using, offering to sell, selling, and/or importing into
`the United States products that satisfy each and every limitation of one or more
`claims of the [individual patent].
`
` (See id. at ¶¶ 19 (’943 Patent), 31 (’297 Patent), 43 (’416 Patent), 52 (’527 Patent), 63 (’432
`
`Patent).) Taking these two statements together results in an allegation that VWAG uses the Patents-
`
`in-Suit in Texas and the Eastern District of Texas without explaining how. The Court finds that
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`this allegation is insufficient to state a plausible claim for relief. NorthStar argues in its response
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`that “VWAG employees or agents from Germany have traveled to the United States to test or
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`troubleshoot the accused vehicles, thereby directly infringing method claims of the [Patents-in-
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`Suit],” and attaches exhibits to this effect. (Dkt. No. 32 at 9.) However, these exhibits are outside
`5
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`818
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`the four corners of the complaint and cannot be considered when evaluating the merits of the
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`motion to dismiss. See Fuhr v. City of Sherman, Texas, 2022 WL 828926, at *2 (E.D. Tex. Mar.
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`18, 2022) (“When deciding a motion to dismiss under Rule 12(b)(6), courts generally may not look
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`beyond the four corners of the complaint.”).
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`The Court also finds that the complaint does not sufficiently allege factual bases for how
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`or why each element of the claims of the Patents-in-Suit is practiced by VWAG.
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`The Court will grant reasonable leave to NorthStar to amend the complaint because these
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`deficiencies are curable. NorthStar requested leave to amend in a footnote in its response, and VW
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`did not oppose this in reply. (Dkt. No. 32 at 10, n. 7.)
`
`ii.
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`Indirect Infringement
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`VWAG asserts (and NorthStar does not dispute) that to sufficiently allege induced
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`infringement, NorthStar must plausibly allege (1) that VWAG has caused or encouraged activity
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`that in fact directly infringes; (2) that VWAG knew of the patent and that the acts in question
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`would infringe; and (3) that VWAG specifically intended to encourage the third party’s
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`infringement. (Dkt. No. 11 at 9–10 (citing Akamai Techs., Inc. v. Limelight Networks, Inc. (“Akami
`
`I”), 692 F.3d 1301, 1308 (Fed. Cir. 2012). VWAG argues that NorthStar failed to plead sufficient
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`facts for each requirement. (Id. at 10–12.)
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`In response, NorthStar argues that it sufficiently alleges (1) that VWAG induces end-users
`
`to infringe the Patents-in-Suit, (2) that VWAG has knowledge of the Patents-in-Suit, and (3) that
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`VWAG has specifically intended to encourage the end user’s infringement. (Dkt. No. 32 at 10.)
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`In reply, VWAG argues that NorthStar’s allegations about inducement are insufficient
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`because they are merely conclusory. (Dkt. No. 41 at 3–4.) VWAG further argues that the evidence
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`of knowledge NorthStar points to in its complaint have not been persuasive to other courts and
`6
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`819
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`should not be to this one either. (Id. at 4) VWAG also argues that NorthStar’s allegations about
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`VWAG’s specific intent to encourage inducement are insufficient because they are conclusory.
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`(Id.)
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`NorthStar re-urges in sur-reply that it has sufficiently alleged facts that VWAG encouraged
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`or induced infringement by customers and end-users. (Dkt. No. 46 at 2–5.)
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`The Court finds that NorthStar’s indirect infringement claims should also be dismissed.
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`For each count of infringement, NorthStar alleges:
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`Defendant has and continues to indirectly infringe one or more claims of the
`[individual patent] by knowingly and intentionally inducing others, including
`VW[AG] customers and end-users, to directly infringe, either literally or under the
`doctrine of equivalents, by making, using, offering to sell, selling, and/or importing
`into the United States products that include infringing technology.
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`(Dkt. No. 1 at ¶¶ 24 (’943 Patent), 36 (’297 Patent), 56 (’527 Patent); see id. at ¶¶ 46 (’416 Patent),
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`66 (’432 Patent).) For each patent, NorthStar also alleges:
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`Defendant, with knowledge that these products, or the use thereof, infringe the
`[individual patent] at least as of the date of this Complaint, knowingly and
`intentionally induced, and continues to knowingly and intentionally induce, direct
`infringement of the [individual patent] by providing these products to end-users for
`use in an infringing manner.
`
`(Id. at ¶¶ 25 (’943 Patent), 37 (’297 Patent), 47 (’416 Patent), 57 (’527 Patent), 67 (’432 Patent).)
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`In a footnote, NorthStar alleges:
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`Upon information and belief, Defendant had actual knowledge of the Patents-in-
`Suit, at least as of December 2020, from industry publications, such as:
`https://insight.rpxcorp.com/news/71544-northstar-systems-has-hit-four-more-
`defendants-so-far-this-summer; https://insight.rpxcorp.com/news/64779-location-
`location-location-northstar-systems-kicks-offsecond-campaign-over-former-iv-
`assets. Defendant was at least willfully blind to the Patents-in-Suit due to
`NorthStar’s publicized enforcement efforts.
`
`(Id. at ¶ 25, n. 3.)
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`7
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`820
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`VWAG first argues that the complaint fails to allege how VWAG induces a third party to
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`perform any of the required steps of the method claims. (Dkt. No. 11 at 10.) In response, NorthStar
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`argues that NorthStar argues that it is “reasonable and plausible” to infer that VWAG specifically
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`intended to induce its customers to infringe the Patents-in-Suit and knew that the customers’ acts
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`constituted infringement. (Dkt. No. 32 at 11–12 (quoting In re Bill of Lading Transmission &
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`Processing Sys. Pat. Litig., 681 F.3d 1323, 1340 (Fed. Cir. 2012).) In reply, VWAG argues that
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`these conclusory statements are insufficient. (Dkt. No. 41 at 3–4 (citing Iqbal, 556 U.S. at 678).)
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`NorthStar argues in sur-reply that the inclusion of the QuickStart Guide in its complaint shows
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`that VWAG encourages end-users to use the accused products in an infringing manner. (Dkt. No.
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`46 at 3.)
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`The Court finds that NorthStar has not sufficiently alleged and specified how VWAG has
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`caused or encouraged infringing activity. Indeed, the Federal Circuit has held that “[p]roviding
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`instructions to use a product in an infringing manner is evidence of the required mental state for
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`inducing infringement.” Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 905 (Fed. Cir. 2014).
`
`See also In re Taasera Licensing LLC, Pat. Litig., No. 2:22-CV-00063-JRG, 2023 WL 2465584,
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`at *3 (E.D. Tex. Mar. 10, 2023) (finding allegations that an alleged infringer “knowingly and
`
`intentionally induced, and continues to knowingly and intentionally induce, direct infringement”
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`of the Patents-in-Suit by “provid[ing] product manuals and documentation that instruct customers
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`and end-users how to use the Accused Products[]” was sufficient to maintain a claim for induced
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`infringement.). However, NorthStar’s argument that it’s citation to a guide in combination with its
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`generalized allegation that VWAG “knowingly and intentionally induc[es] … end-users[] to
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`directly infringe” is just that, an argument, not a factual allegation duly laid out in the complaint.
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`8
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`821
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`VWAG next argues that NorthStar has failed to sufficiently allege facts to show that
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`VWAG had pre-suit knowledge of the asserted patents. (Dkt. No. 11 at 10.) VWAG argues that
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`the articles NorthStar alleges gave VWAG pre-suit knowledge are too attenuated, and cites the
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`decisions of two out-of-Circuit district courts for support. (Id. (citing Alarm.com, Inc. v. SecureNet
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`Techs. LLC, 345 F. Supp. 3d 544, 554 (D. Del. 2018); SoftView LLC v. Apple Inc., No. 10-389-
`
`LPS, 2012 WL 3061027, at *6 (D. Del. July 26, 2012)).) Moreover, VWAG argues that
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`prosecution attorney’s knowledge of the ’943 Patent is not evidence that VWAG knew of the
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`patent. (Id. at 11 (citing Core Optical Techs., LLC v. Nokia Corp., No. SA CV19-02190 JAK
`
`(RAOx), 2020 WL 6126285, at *6–7 (C.D. Cal. Oct. 8, 2020); DermaFocus LLC v. Ulthera, Inc.,
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`201 F. Supp. 3d 465, 471 (D. Del. 2016)).)
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`In response, NorthStar argues that VWAG had actual knowledge of the ’943 Patent, the
`
`’416 Patent, and the ’432 Patent based on VWAG’s citation to the patents in their own patent
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`applications. (Dkt. No. 32 at 10 (citing Dkt. No. 1 at ns. 3, 6, 10).) Moreover, NorthStar argues
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`that a generalized allegation of knowledge is sufficient to for a claim of indirect infringement to
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`survive a motion under 12(b)(6). (Id. at 12 (citing Erfindergemeinschaft Uropep GbR v. Eli Lilly
`
`& Co., No. 2:15-CV-1202-WCB, 2016 WL 1643315, at *4 n.4 (E.D. Tex. Apr. 26, 2016)).)
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`Moreover, NorthStar points out that it alleges that VWAG was willfully blind to the Patents-in-
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`Suit, and that this is sufficiently pled. (Id. at 14 (citing Warsaw Orthopedic, Inc. v. NuVasive, Inc.,
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`824 F.3d 1344, 1347 (Fed. Cir. 2016) (finding that “willful blindness can satisfy the knowledge
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`requirement for active inducement under § 271(b) (and for contributory infringement under §
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`271(c)), even in the absence of actual knowledge.”) (citations omitted)).)
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`The Court finds that NorthStar has sufficiently alleged that VWAG knew of the Patents-
`
`in-Suit. First, an allegation that the defendant had knowledge of the patent as of the filing of the
`9
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`822
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`complaint is “sufficient to prove knowledge of the patent for purposes of indirect infringement, at
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`least from the time of the complaint going forward.” Erfindergemeinschaft Uropep GbR v. Eli Lilly
`
`& Co., No. 2:15-CV-1202-WCB, 2016 WL 1643315, at *4 n.4 (E.D. Tex. Apr. 26, 2016)).)
`
`VWAG does not dispute (1) that this is an accurate statement of law, or (2) that it had knowledge
`
`of the patents as of the filing of the complaint. (See Dkt. No. 41 at 4.) Further, NorthStar has
`
`sufficiently alleged pre-suit knowledge, where it may be required. NorthStar pled that VWAG
`
`“was at least willfully blind to the Patents-in-Suit due to NorthStar’s publicized enforcement
`
`efforts.” (Dkt. No. 1 at ¶ 25.) Moreover, willful blindness can satisfy the knowledge requirement
`
`under § 271(b) and § 271(c). Warsaw Orthopedic, 824 F.3d at 1347. Further, NorthStar alleged
`
`that VWAG had actual knowledge of the ’943 Patent, the ’416 Patent, and the ’432 Patent based
`
`on VWAG’s citation to the patents in their own patent applications. (Dkt. No. 1 at ns. 3, 6, 10.)
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`Other courts in this Circuit have found citations to Patents-in-Suit sufficient to establish knowledge
`
`at the motion to dismiss stage. See BillJCo, LLC v. Apple Inc., 583 F. Supp. 3d 769, 776 (W.D.
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`Tex. 2022). This Court concurs.
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`B. Motion to Transfer
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`VWAG argues that this case could have been brought in the Eastern District of Michigan,
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`and NorthStar does not dispute this. (Dkt. No. 11 at 12–13.)
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`i. Private Factors
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`a. Relative Ease of Access to Sources of Proof
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`VWAG argues that several document custodians are likely to have relevant information
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`and work out of VWGoA’s facilities in Auburn Hills, MI. (Dkt. No. 11 at 13.) Specifically, VWAG
`
`argues that there are
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`
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`10
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`823
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`
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` (Id.) VWAG also argues that there are no sources of proof in the District. (Id. at
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`13–14.)
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`NorthStar argues that VWAG has not met its burden because it has failed to specifically
`
`identify any sources of the proof in EDMI. (Dkt. No. 32 at 16 (citing Def. Distributed v. Bruck, 30
`
`F.4th 414, 434 (5th Cir. 2022) (“Regarding the first private interest factor, the movant has the
`
`burden to establish good cause, which requires an actual showing of the existence of relevant
`
`sources of proof, not merely an expression that some sources likely exist in the prospective
`
`forum.”)).) Further, NorthStar argues, because the evidence identified by VWAG is likely
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`electronic. (Id. (citing In re Planned Parenthood Fed’n of Am., Inc., 52 F.4th at 625, 630 (5th Cir.
`
`2022) (“[T]he vast majority of the evidence was electronic, and therefore equally accessible in
`
`either forum.”)).) NorthStar contends that VWAG only identifies
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` and types
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`of documents, but not what the documents or why they are relevant. (Id. at 16–17.) More
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`importantly, NorthStar contends, these documents belong to a third-party: VWGoA. (Id. at 17.)
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`Further, NorthStar argues, all of its proofs are located in EDTX. (Id. at 17–18.)
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`In reply, VWAG offers more specificity about the types of documents VWGoA has in its
`
`possession, and why they are relevant. (Dkt. No. 41 at 5–7.) VWAG also argues that NorthStar
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`has not provided specificity about its own proffered sources of proof, nor explained why they are
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`relevant. (Id. at 8.) VWAG further argues that whether NorthStar’s identified witnesses have
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`relevant information is speculative. (Id. at 9.)
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`11
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`824
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`In sur-reply, NorthStar again points out that VWAG only relies on sources of proof located
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`with VWGoA and again argues that the sources of proof are not identified with sufficient
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`specificity. (Dkt. No. 46 at 5–6.) NorthStar also argues that its own documents are located in the
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`District. (Dkt. No. 46 at 8.)
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`The Court finds that this factor weighs slightly in favor of transfer. Undoubtedly, VWAG
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`will have more information that is relevant to the case than NorthStar will. For example, VWAG
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`will need to provide information about how its accused products function. NorthStar says
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`VWAG’s information is electronic, and VWAG does not dispute this. (Dkt. No. 32 at 16. See Dkt.
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`No. 41.) Since the evidence is electronic, it is “equally accessible in either forum.” In re Planned
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`Parenthood, 52 F.4th at 630. On balance, therefore, that this factor weighs in favor of transfer, but
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`only slightly so because such information is likely electronic, and essentially ubiquitous.
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`b. The Availability of Compulsory Process
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`VWAG asserts that there are potential third-party witnesses from VWGoA located in
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`Auburn Hills, Michigan, and that EDMI would be more convenient for these witnesses than
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`EDTX. (Dkt. No. 11 at 14.)
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`In response, NorthStar points out that VWAG fails to identify any witnesses who would be
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`unwilling to testify. (Dkt. No. 32 at 19.) Moreover, NorthStar argues, VWAG has not specifically
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`identified who these witnesses are, whether they are willing, or what information they may have.
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`(Id.) Further, NorthStar identifies three third-party witnesses, Messrs.
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`, Beyer, and
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`Marlowe, who allegedly are aware of relevant information and are outside the subpoena power of
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`EDMI, (albeit within the subpoena power of this Court).
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`825
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`In reply, VWAG argues that the categories of witnesses it identified are unwilling to testify
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`at trial. (Dkt. No. 41 at 7.) VWAG also disputes that the third-party witnesses that NorthStar
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`identified would be unwilling, and that they possess relevant, non-duplicative information.
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`In sur-reply, NorthStar again argues that VWAG has not identified its witnesses with
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`specificity. (Dkt. No. 46 at 6.)
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`While VWAG has not identified the names of potential witnesses, the Court finds it likely
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`that there are witnesses who are within the subpoena power of the EDMI court, but not this one.
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`On the other hand, there are third-party witnesses that NorthStar will call who are within the
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`subpoena power of this Court, but not EDMI.
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` has knowledge about the prior
`
`acquisition of the Patents-in-Suit. Mr. Beyer has knowledge of the state of the art in the early
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`2000’s. Last, Mr. Marlowe has knowledge related to a hypothetical negotiation since he was
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`involved in enforcement efforts regarding car infotainment systems. In sum, both parties have
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`unwilling witnesses in their respective districts of choice. The process of identifying potential
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`witnesses this early in the development of any case is unavoidably speculative to some degree.
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`Experience teaches that the persons who testify at trial are very often completely different than
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`those averred to be vital at the motion to transfer stage. This factor is neutral.
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`c. Cost of Attendance for Willing Witnesses
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`VWAG argues that EDMI is more convenient for any of its willing witnesses because its
`
`witnesses are foreign and EDMI is close to the Detroit airport. (Dkt. No. 11 at 14–15.)
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`In response, NorthStar argues that VWAG has not identified with specificity any willing
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`witness, and that even if VWAG were to do so, this factor would be neutral because they would
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`have to travel a long distance regardless. (Dkt. No. 32 at 20–21.) Moreover, NorthStar argues,
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`826
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`EDTX is more convenient for its own willing witnesses, Mr. Schweitzer,
`
`
`
` (Id. at 21.)
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`VWAG argues in reply that Mr. Schweitzer lives in New York, which is closer to EDMI
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`than EDTX. (Dkt. No. 41 at 9 (citing Longhorn HD LLC. v. Juniper Networks, Inc., 2021 WL
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`4243382, at *4 (E.D. Tex. Sept. 16, 2021) (“Mr. Thomas Schweitzer, the company’s manager,
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`who maintains an office in this District, but otherwise lives in New York”)).) VWAG argues that
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`NorthStar has not alleged that
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` has analyzed data regarding VWAG. (Id.) Moreover,
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`VWAG argues that NorthStar’s argument that
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` has relevant documents is too
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`vague. (Id. at 10.)
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`In sur-reply NorthStar argues that Mr. Schweitzer is here for business more frequently, so
`
`EDTX is more convenient for him, notwithstanding that EDMI is closer to his residence. (Dkt. No.
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`46 at 8.)
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`The Court finds that this factor weighs slightly against transfer. VWAG has not identified
`
`any willing witnesses with any specificity. On the other hand, NorthStar has identified three
`
`specified witnesses. Mr. Schweitzer calls New York home, and says it is more convenient for him
`
`to travel to EDTX over EDMI because he does business here. Accordingly, this factor weighs
`
`slightly against transfer.
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`d. All Other Practical Problems
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`VWAG argues that this factor favors transfer because of the convenience of the witnesses
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`and the fact that transfer would not cause delays because the case is in its early stages. (Dkt. No.
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`11 at 15.)
`
`NorthStar argues in reply that since this case has been consolidated with another, whose
`
`defendant has not moved for transfer, that this factor weighs against a transfer. (Dkt. No. 32 at 21–
`14
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`827
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`22.) Moreover, NorthStar argues, this case will not be in its early stages by the time the Court rules
`
`on the Motion, seeing that the parties will have likely already entered a Docket Control Order, a
`
`Discovery Order, and a Protective Order, and NorthStar will have served its preliminary
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`infringement contentions on VWAG. (Id. at 22.)
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`VWAG argues in reply that consolidation does not preclude transfer. (Dkt. No. 41 at 10
`
`(citing In re DISH Network L.L.C., 2021 WL 4911981, at *3 (Fed. Cir. Oct. 21, 2021); GeoTag,
`
`Inc. v. Starbucks Corp., 2013 WL 890484, at *6 (E.D. Tex. Jan.14, 2013) (holding that related
`
`patent cases were not relevant to the transfer analysis)).)
`
`NorthStar argues in sur-reply that the consolidated cases involve the same fundamental
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`technology. (Dkt. No. 46 at 9.)
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`The Court finds that this factor is neutral. The fact that this case is consolidated with
`
`another has no bearing on the transfer analysis. Moreover, the case is in its early stages so there
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`are no strong arguments as to practical problems from either party.
`
`ii. Public Factors
`
`a. Administrative Difficulties Flowing
`
`from Court
`
`Congestion
`
`VWAG argues that the relevant inquiry under this factor is “[t]he speed with which a case
`
`can come to trial and be resolved.” (Dkt. No. 11 at 15 (citing In re Genentech, 566 F.3d 1338,
`
`1347 (Fed. Cir. 2009)).) However, VWAG argues, since NorthStar is not engaged in product
`
`competition in the marketplace, there is no urgency for its resolution. (Id. at 15–16 (citing In re
`
`Google LLC, No. 2023-101, 2023 WL 1425780, at *3 (Fed. Cir. Feb. 1, 2023) (finding this factor
`
`neutral where the plaintiff was not a competitor)).) In response, NorthStar argues that this factor
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`weighs against transfer because the time to trial is faster before this Court than in EDMI. (Dkt. No.
`15
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`32 at 22.) VWAG argues in reply that this factor is the most speculative. (Dkt. No. 41 at 10 (citing
`
`In re Genentech, 566 F.3d at 1347).) NorthStar argues in sur-reply that this factor should be
`
`considered by the Court, and not disregarded. (Dkt. No. 46 at 10.)
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`The Court finds that this factor is neutral. While time to trial is demonstrably faster in
`
`EDTX, NorthStar and VWAG are not competitors.
`
`b. The Local Interest in Having Localized Interests Decided
`
`at Home
`
`VWAG argues that this factor favors transfer because
`
`
`
` near EDMI. (Dkt. No. 11 at 16.) VWAG further argues that there
`
`is no local interest in EDTX. (Id. at 17.) Further still, VWAG argues, little weight should be given
`
`to NorthStar’s preference of forum because it is recent and ephemeral, formed for the purpose of
`
`litigation.
`
`NorthStar argues in response that
`
`
`
`, as VWAG previously admitted. (Dkt. No. 32 at 23 (citing Dkt. No. 11 at 22).) NorthStar
`
`further argues that it is not a recent, ephemeral entity formed for the purpose of litigation—it has
`
`resided in the District since 2019,
`
`
`
`. (Id.) According to NorthStar, this factor therefore weighs against transfer.
`
`(Id. at 24.)
`
`VW argues in reply that the local interests are clearly more tied to EDMI than EDTX—
`
` while NorthStar only exists in EDTX for
`
`litigation purposes. (Dkt. No. 41 at 10.)
`
`In sur-reply, NorthStar argues t