Case 4:17-cv-03767 Document 42 Filed in TXSD on 07/05/18 Page 1 of 14
`United States District Court
`Southern District of Texas
`ENTERED
`July 05, 2018
`David J. Bradley, Clerk
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`§
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` CIVIL ACTION NO. 4:17-CV-3767
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`§ §
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`ENERGY INTELLIGENCE GROUP,
`INC., and ENERGY INTELLIGENCE
`GROUP (UK) LIMITED,
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` Plaintiffs,
`VS.
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`BANK OF AMERICA, N.A.,
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` Defendant.
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`MEMORANDUM & ORDER
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`Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited
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`(collectively, “EIG”) produce specialized publications for the energy industry. EIG contends that
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`Defendant Bank of America, N.A. (“BANA”), a subscriber to numerous EIG publications,
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`repeatedly exceeded the bounds of its licensing agreement with EIG. In EIG’s view, this
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`constitutes infringement of EIG’s exclusive rights to reproduce and distribute its copyrighted
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`works.
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`EIG chose to commence this action here in the Southern District of Texas; BANA insists
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`the Southern District of New York is the more convenient venue and seeks transfer there. (Doc.
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`No. 32.) This litigation could reasonably be conducted in either place. Events relevant to this
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`lawsuit occurred in both cities; likewise, persons connected to this lawsuit may be found in both.
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`Transfer should be granted when another venue is “clearly more convenient.” In re Volkswagen
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`of America, Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (“Volkswagen II”). Not finding that
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`to be the case here, the Court holds that transfer to the Southern District of New York is not
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`warranted.
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`As an alternative to transfer, BANA seeks dismissal of this action on various grounds.
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`Finding its arguments unpersuasive, the Court declines to dismiss EIG’s claims.
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`I.
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`BACKGROUND
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`EIG, Inc. and EIG (UK)––a Delaware corporation based in New York City and a UK
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`company based in London, respectively––have produced specialized reporting and commentary
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`for the global energy industry for many years. (Doc. No. 1 at 1–2.) EIG has sixty employees at
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`seven bureaus, including New York City and Houston. (Id. at 4.) Its publications at issue here are
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`Oil Daily, Natural Gas Week, World Gas Intelligence, Petroleum Intelligence Weekly, Energy
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`Intelligence Finance, and Nefte Compass. (Id. at 2–3.) Each, with the exception of Oil Daily, is a
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`weekly publication. BANA is a federally chartered banking association headquartered in North
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`Carolina, with a substantial business presence in New York, Houston, and elsewhere. (Doc. No.
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`32 at 3; Doc. No. 39 at 2–3.)
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`EIG registers its publications with the U.S. Copyright Office on a monthly basis. (Id. at
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`7–18.) Its Complaint is accompanied by Certificates of Registration from the U.S. Copyright
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`Office going back to the February 2013 issues of its various publications. (Doc. No. 1-8 to 1-24.)
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`EIG asserts that it provides clear copyright notices and warnings on its publications, its website,
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`and its emails. For instance, an email distribution of Oil Daily from 2014 contained the
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`following:
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`Copyright (c) 2014 Energy Intelligence Group, Inc. All rights reserved.
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`in any manner
`internally or externally
`Reproduction or distribution
`(photostatically, electronically, or via facsimile), including by sharing printed
`copies, or forwarding or posting on local- and wide-area networks and intranets,
`or sharing user name and password, is strictly prohibited without appropriate
`license from Energy Intelligence -- contact CustomerService@energyintel.com
`for more information.
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`(Doc. No. 1-7.) Similarly, a supplement to Oil Daily from 2014 stated the following just beneath
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`its heading: “Copyright © 2014 Energy Intelligence Group. All rights reserved. Unauthorized
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`access or electronic forwarding, even for internal use, is prohibited.” (Doc. No. 1-1 at 8.)
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`EIG explains that its publications are aimed not only at the energy industry, but also at
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`the financial sector. (Doc. No. 1 at 3.) Among EIG’s subscribers are various BANA employees,
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`since at least 2013. EIG identifies four persons, based in BANA’s Houston, New York City, and
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`Hong Kong offices, who have subscribed to Oil Daily; five persons, based in BANA’s Houston,
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`New York City, and London offices, who have subscribed to Natural Gas Week; one person,
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`based in BANA’s Houston office, who has subscribed to World Gas Intelligence; two persons,
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`based in BANA’s London office, who have subscribed to Petroleum Intelligence Weekly; one
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`person, based in BANA’s Houston office, who has subscribed to Energy Intelligence Finance;
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`and one person, based in BANA’s Moscow office, who has subscribed to Nefte Compass. (Doc.
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`No. 1 at 18–25.)
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`A standard licensing agreement, renewed yearly, governs the various subscriptions held
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`by BANA employees. EIG attaches these to its Complaint. For instance, the license agreement in
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`effect for 2017 shows a Bank of America contact, Wendy Fernandez, based in New York City;
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`the period of the agreement; the fee schedule; and the individual BANA employees associated
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`with each subscription. (Doc. No. 1-26.) The agreement also contains a text that defines the
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`scope of the “limited, non-exclusive and non-transferable license” conferred on “Authorized
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`Users” of EIG’s publications. (Id. at 3.) It provides:
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`Use. When [Energy Intelligence] Services are accessed and/or provided
`electronically, Authorized Users may download the licensed EI Services only for
`their respective individual referential use. In addition, Authorized Users may
`occasionally distribute a copy of a story from the EI Services to a few individuals,
`and in a non-systematic manner in the ordinary course of business, provided the
`copyright and other proprietary rights notices are included and that Subscriber
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`and/or Authorized User does not edit, alter or abridge the content from the EI
`Services. For the avoidance of doubt, no such distribution is permitted if in
`Energy Intelligence’s sole judgment it could serve as a substitute for a
`subscription to publications and/or the content of the publications within the EI
`Services. Except as otherwise noted in this Section . . . no content from the EI
`Services may be downloaded, transmitted, broadcast, transferred, assigned,
`reproduced or in any other way used or disseminated in any form, to any person
`not specifically identified herein as an Authorized User, without the explicit
`written consent of Energy Intelligence in each instance.
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`(Id.)
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`At the heart of EIG’s Complaint are two episodes involving BANA employees. First, in
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`February 2015, a BANA employee named Shang Gao emailed an EIG account manager, Jessie
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`Da Silva Sims, asking for access to a particular Oil Daily supplement. (Doc. No. 1 at 25–26.)
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`They spoke several times, with Gao evidently telling Sims that he received Oil Daily regularly
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`from Erika Smith, a Houston-based BANA employee and subscriber to that publication. (Id. at
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`26.) Gao also indicated that Smith either put Oil Daily on an internal library system or forwarded
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`it to him. (Id.) This led EIG to contact Daphne Joseph, then EIG’s contact at BANA, about the
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`unauthorized copying and distribution of EIG’s publications. (Id.) According to EIG, Joseph
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`spoke with the managers of “various business groups” at BANA and received their assurance
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`that such unauthorized distribution would not recur. (Id. at 27.) Through Joseph, BANA also
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`evidently declined to purchase a “Global Enterprise License” for EIG’s publications. (Id.) After
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`EIG’s exchange with Joseph, Gao again contacted Sims, in the process revealing that he had
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`continued to receive Oil Daily via forwarding from other employees. (Id.)
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`Second, in June 2017, two EIG sales employees went to BANA’s New York office to
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`visit with Gregg Brody, a subscriber to Natural Gas Week. (Doc. No. 1 at 28.) While there, they
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`spoke with Shanna Qiu, a research analyst who worked with Brody. (Id.) Qiu allegedly told the
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`EIG employees that Brody “forward[ed] the publication to her and the ‘entire team’ every
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`week.” (Id.) Qiu identified one person specifically that also received Brody’s forwards, Steve
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`Weiss, whom EIG believes to be a high-level executive at BANA. (Id. at 29.)
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`Based on the foregoing allegations, EIG brought six copyright infringement claims
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`against BANA, one for each of the publications listed above. (Doc. No. 1 at 31–39.) Its
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`Complaint requested a permanent injunction, damages, added damages for willfulness,
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`disgorgement, and other relief. (Id. at 41–42.) The Complaint drew BANA’s pending motion to
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`transfer or else to dismiss (Doc. No. 32), to which the Court now turns.
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`II. MOTION TO TRANSFER VENUE
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`Federal law generally permits a plaintiff to sue a defendant in any judicial district where
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`the defendant resides, defining residency to include “any judicial district in which such defendant
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`is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28
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`U.S.C. § 1391(a), (c). “Because large corporations . . . often have sufficient contacts to satisfy
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`the requirement of § 1391(c) for most, if not all, federal venues, the general venue statute ‘has
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`the effect of nearly eliminating venue restrictions in suits against corporations.’” Volkswagen II,
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`545 F.3d at 312 (quoting 14D Wright, Miller, & Cooper, Federal Practice & Procedure § 3802
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`(3rd ed., 2007)).
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`The venue transfer statute, 28 U.S.C. § 1404, curbs potential abuses of the general venue
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`statute by preventing plaintiffs from subjecting defendants to inconvenient venues. Volkswagen
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`II, 545 F.3d at 312. It provides: “For the convenience of parties and witnesses, in the interest of
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`justice, a district court may transfer any civil action to any other district or division where it
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`might have been brought or to any district or division to which all parties have consented.” 28
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`U.S.C. § 1404(a). This is “a powerful tool to bring forth efficient judicial case management
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`among the various federal courts.” In re Rolls Royce Corp., 775 F.3d 671, 677 (5th Cir. 2014).
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`The party seeking transfer bears the burden of demonstrating that the court should wield this
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`tool. Volkswagen II, 545 F.3d at 315. The movant’s burden is one of “good cause.” Id. “[W]hen
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`the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the
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`plaintiff’s choice should be respected. When the movant demonstrates that the transferee venue
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`is clearly more convenient, however, it has shown good cause and the district court should
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`therefore grant the transfer.” Id.
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`The court is to assess convenience in light of certain factors “measured across two
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`dimensions: the interests of the litigants, and the interests of the public and judicial system writ
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`large.” Rolls Royce, 775 F.3d at 677. The former 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 witnesses;
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`(3) the cost of attendance for willing witnesses; and (4) all other practical problems that make
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`trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th
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`Cir. 2004) (“Volkswagen I”). The latter include “(1) the administrative difficulties flowing from
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`court congestion; (2) the local interest in having localized interests decided at home; (3) the
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`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 lists
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`are not “exhaustive or exclusive,” nor are particular factors “dispositive.” Volkswagen II, 545
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`F.3d at 315. For instance, the Fifth Circuit has said elsewhere that “the plaintiff’s choice of
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`forum is clearly a factor to be considered,” though it too is “neither conclusive nor
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`determinative.” In re Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003).
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`With the exception of EIG’s choice to commence litigation in Houston, the private
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`interest factors generally favor New York. This owes to the fact that more of the likely witnesses
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`in the case reside in New York than in Houston. The parties’ briefing identifies seventeen
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`individuals, of whom fourteen are associated with BANA and three with EIG. (Doc. No. 36 at 4;
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`Doc. No. 32-1.) Of the fourteen current or former BANA employees, six reside in New York,
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`three in Houston, one in Irving, Texas, and five abroad. (Id.) Three of those residing abroad live
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`in London, and BANA argues persuasively that New York would be more convenient for them
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`than Houston. (Doc. No. 36 at 4.) Of the three EIG witnesses, two reside in New York and one in
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`Houston. (Id.) Though Houston would be more convenient for some, this geographical
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`distribution causes each of the private interest factors to tip toward transfer. Sources of proof
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`associated with these witnesses are more easily accessed; compulsory process reaches more of
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`them; and willing witnesses face lower costs of attendance.
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`BANA notes an additional connection to New York: EIG, Inc. is headquartered there.
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`(Doc. No. 32 at 12.) BANA suggests that this means documentary sources of proof will be more
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`readily accessed there than in Houston. (Id.) EIG counters that some sources of proof will be
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`found in Houston. (Doc. No. 35 at 10.) It adds that electronically stored information can be
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`produced efficiently anywhere. (Id.) But “the question is relative ease of access, not absolute
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`ease of access.” In re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013). Even if the difference
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`between Houston and New York is small, it supports transfer to New York.1
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`The interests of the public and judicial system writ large complicate matters. Two factors
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`do not support transfer. One is that courts in both venues are familiar with copyright law,
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`presiding frequently over copyright litigation. (Doc. No. 36 at 7.) Another is that no concern for
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`conflicts of law arises because federal law governs the present case. As for local interests, New
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`1 BANA adds another point that should favor New York. Both parties’ attorneys are located there. (Doc. No. 32 at
`11.) One might consider this among the “practical problems that make trial of a case easy, expeditious and
`inexpensive.” Volkswagen I, 371 F.3d at 203. But the Fifth Circuit has made clear that the location of counsel “is
`irrelevant and improper for consideration in determining the question of transfer of venue.” In re Horseshoe Entm’t,
`337 F.3d at 434. Accordingly, the Court does not consider it here.
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`York does have a somewhat greater interest in the dispute and thus a weightier concern for
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`resolving the dispute there rather than here. Houston, it should be said, is not without interests in
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`the case. Relevant events occurred here, and both sides have substantial business presence here.
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`But New York’s interest is relatively greater. EIG is headquartered in New York; EIG executed
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`its licensing agreements with New York personnel of BANA; and more New York residents are
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`likely witnesses in this litigation than Houston residents.
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`By contrast, the potential administrative difficulties flowing from court congestion point
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`decidedly in favor of Houston. Of the many caseload statistics published for district courts,
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`courts assign the most weight to the median time for a civil case to proceed from filing to
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`disposition. See, e.g., Watson v. Fieldwood Energy Offshore, LLC, 181 F. Supp. 3d 402, 412
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`(S.D. Tex. 2016); BR Tank, LLC v. Holcim (US) Inc., 2009 WL 3831379, at *4 (S.D. Tex. Nov.
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`12, 2009); ExpressJet Airlines, Inc. v. RBC Capital Markets Corp., 2009 WL 2244468, at *12
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`(S.D. Tex. July 27, 2009). For calendar year 2017, the median time nationwide was 27.0 months.
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`(Doc. No. 32-1 at 15.) The Southern District of New York was above this mark at 29.4 months,
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`while the Southern District of Texas was well below it at 20.4. (Id. at 25, 50.) This substantial
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`disparity has existed consistently for years. (Id.)
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`BANA insists that EIG’s choice of venue should be given no weight. It contends that
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`when a plaintiff is not from the chosen forum and the “key operative facts underlying the case”
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`did not occur in the chosen forum, the plaintiff’s choice should get no consideration. (Doc. No.
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`32 at 8–9.) Indeed, there is precedent for that. See, e.g., In re Horseshoe Entm’t, 337 F.3d at
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`434–35. But it is inapposite here. Numerous likely witnesses reside in Houston, and some of the
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`key allegations in EIG’s Complaint concern the conduct of BANA personnel, Shang Gao and
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`Erika Smith, based in Houston at the time in question.
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`How then to weigh these factors? The Fifth Circuit’s mandamus jurisprudence on transfer
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`decisions is instructive. In In re Radmax, the Fifth Circuit reversed a district court’s decision not
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`to transfer a case from the Marshall Division to the Tyler Division of the Eastern District of
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`Texas. 720 F.3d at 290. The circuit court found that five of eight factors were neutral, three
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`favored transfer, and none favored the original venue other than the plaintiff’s choice to file
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`there. Id. It warned lower courts to be “fully aware of the inadvisability of denying transfer
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`where only the plaintiff’s choice weighs in favor of denying transfer and where the case has no
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`connection to the transferor forum and virtually all of the events and witnesses regarding the
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`case—here, indeed all of those events, facts, witnesses, and other sources of proof—are in the
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`transferee forum.” Id. Likewise, in Volkswagen II, a product liability action arising out of a car
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`accident in the Dallas area, the court found that none of the factors favored keeping the case in
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`the Marshall Division of the Eastern District, its original venue. 545 F.3d at 316–38. All
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`witnesses, sources of proof, and local interests were to be found in Dallas. Id.
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`In contrast to these cases, this case has considerable contacts with both the transferor and
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`transferee venues. EIG’s choice to file in Houston is quite reasonably based on the case’s actual
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`connections to this venue, and EIG’s choice has the advantage of a markedly quicker median
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`time to disposition. Set against these considerations, BANA’s emphasis on the relative
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`distribution of witnesses and evidence is not so strong that it establishes New York is clearly the
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`more convenient venue. Accordingly, the Court declines to grant BANA’s request for transfer.
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`III. MOTION TO DISMISS
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`The Federal Rules of Civil Procedure permit a district court to dismiss a complaint for
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`“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “A pleading
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`that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
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`will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
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`factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
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`v. Twombly, 550 U.S. 544, 555, 557 (2007)). The complaint must plead “only enough facts to
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`state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. When ruling on a
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`motion to dismiss, the court must “construe facts in the light most favorable to the nonmoving
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`party, as a motion to dismiss under 12(b)(6) is viewed with disfavor and is rarely granted.”
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`Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quotation omitted).
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`BANA contends that EIG has failed to state a claim for copyright infringement. “A claim
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`of copyright infringement has two elements: (1) ownership of a valid copyright; and (2) copying
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`constituent elements of the work that are copyrightable.” Geophysical Service, Inc. v. TGS-
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`NOPEC Geophysical Co., 850 F.3d 785, 791 (5th Cir. 2017). “[R]egardless of whether a plaintiff
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`can meet these elements, the existence of a license authorizing the use of copyrighted material is
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`an affirmative defense to an allegation of infringement.” Baisden v. I’m Ready Prods., Inc., 693
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`F.3d 491, 499 (5th Cir. 2012) (quotation omitted). Accordingly, EIG’s factual allegations must
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`make it plausible that EIG is entitled to relief under this standard.
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`BANA challenges EIG’s complaint in several ways. Most broadly, it asserts that EIG has
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`actually stated claims that sound in breach of contract, not in copyright infringement. (Doc. No.
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`32 at 18.) BANA faces a steep uphill climb to press this argument, because district courts have
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`routinely permitted EIG to proceed with the same sort of copyright infringement claims that it
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`has stated here. See, e.g., Energy Intell. Group, Inc. v. CHS McPherson Refinery, Inc., 300 F.
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`Supp. 3d 1356 (D. Kan. 2018); Energy Intell. Group, Inc. v. Kayne Anderson Capital Advisors,
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`LP, 2016 WL 1203763 (S.D. Tex. Mar. 22, 2016); Energy Intell. Group, Inc. v. Jeffries, LLC,
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`101 F. Supp. 3d 332 (S.D.N.Y. 2015).
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`BANA is correct that, when a copyright owner permits another to access or use
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`copyrighted material subject to a license agreement, as here, some disputes between them are
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`properly considered breaches of contract. See, e.g., Design Basics, LLC v. Chelsea Lumber Co.,
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`977 F. Supp. 2d 714, 728 (E.D. Mich. 2013). The court in Design Basics, one of BANA’s
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`favored cases, ruled as such in a dispute between a creator of architectural plans and its licensee.
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`The defendant had a right to sell architectural plans produced by the plaintiff, but afterwards it
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`had to report sales data promptly. Id. at 731–33. Failure to report the sales data constituted a
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`breach of their contract, but not an infringement of the plaintiff’s copyright. Id.
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`But Design Basics makes clear that a licensee can commit copyright infringement. As the
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`court explained there, a copyright owner that grants licenses to its material generally waives the
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`right to sue for infringement, but importantly, “uses of the copyrighted material that exceed the
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`scope of the license may infringe the licensor’s copyright.” 977 F. Supp. 2d at 728. As
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`illustration of that point, the defendant in Design Basics did not have a contractual right to
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`modify the plaintiff’s plans before selling them, but it was doing so. This was held to constitute
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`copyright infringement. Id. at 733–34.
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`BANA’s other favored cases confirm that licensees can commit copyright infringement
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`by exceeding the scope of the license. For instance, BANA relies Wood v. B L Bldg. Co., 2004
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`WL 5866352 (S.D. Tex. June 22, 2004), which quotes the Ninth Circuit for the following
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`proposition: “Generally, a copyright owner who grants a nonexclusive license to use his
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`copyrighted material waives his right to sue the licensee for copyright infringement and can sue
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`only for breach of contract.” Id. at *4 (quoting Sun Microsystems, Inc. v. Microsoft Corp., 188
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`F.3d 1115, 1121 (9th Cir. 1999), abrogated on other grounds by eBay Inc. v. MercExchange,
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`L.L.C., 547 U.S. 388 (2006)). But the Ninth Circuit went on to draw the same distinction as in
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`Design Basics: “If, however, a license is limited in scope and the licensee acts outside the scope,
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`the licensor can bring an action for copyright infringement.” 188 F.3d at 1121.
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`EIG has asserted the type of infringement claim recognized in Design Basics and Sun
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`Microsystems. Its licensing agreement was limited in scope, permitting individual subscribers to
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`access its publications only on an individual basis and to share publications with others only
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`occasionally. (Doc. No. 36 at 24.) EIG alleges that BANA employees exceeded these limits,
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`forwarding articles regularly and widely and even placing EIG publications on internal library
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`systems. It contends that BANA thereby violated EIG’s exclusive rights to reproduce and
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`distribute its copyrighted material. See 17 U.S.C. § 106(1), (3). These allegations properly state
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`claims for copyright infringement.
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`Next, BANA argues that EIG has alleged only copying that was permitted by the
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`licensing agreement. (Doc. No. 32 at 17.) BANA refers here to the provision in the licensing
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`agreement, just mentioned, that allowed subscribers occasionally to distribute a copy of an EIG
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`publication to a few individuals in a “non-systematic manner.” This argument fails as well.
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`EIG’s complaint contains detailed allegations that amount to well more than occasional, non-
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`systematic distribution. As noted, Shang Gao allegedly revealed that a subscriber forwarded Oil
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`Daily to him regularly and put it on an internal library. Similarly, Shanna Qiu allegedly revealed
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`that a subscriber forwarded Natural Gas Week routinely to Qiu’s “entire team.” Further litigation
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`may bear out BANA’s view that its employees’ conduct was within the scope of the license
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`agreement. For now, EIG’s allegations suffice to satisfy the Rule 12(b)(6) standard.
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`Finally, BANA argues that, even if EIG has made adequate allegations for infringement
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`of Oil Daily and Natural Gas Week, it has not done so for the publications underlying its four
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`other claims: World Gas Intelligence, Petroleum Intelligence Weekly, Energy Intelligence
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`Finance, and Nefte Compass. (Doc. No. 32 at 15–17.) It bases this argument partly on cases
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`holding “that plaintiffs must adequately allege specific acts of infringement by each defendant.”
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`(Doc. No. 32 at 16, citing Springboards to Educ., Inc. v. KIPP Fdtn., 2017 WL 3917701, at *4
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`(N.D. Tex. Sept. 7, 2017; Taylor v. IBM, 54 F. App’x 794 (5th Cir. 2002)). But those cases
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`concern the problem of complaints that name numerous defendants and then make broad
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`allegations not associated with any particular defendant. The present case, brought against a
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`single defendant for the acts of its employees, is free of that problem.
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`BANA also bases this argument on cases requiring a plaintiff to plead “by what acts
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`during what time” the defendant infringed the copyright. See Kelly v. L.L. Cool J., 145 F.R.D.
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`32, 36 (S.D.N.Y. 1992); see also Energy Intell. Group, Inc. v. Jeffries, LLC, 101 F. Supp. 3d
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`332, 340 (S.D.N.Y. 2015). EIG’s allegations suffice to satisfy the standard imposed in these
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`cases. EIG’s complaint identifies the copyrights at issue, the relevant time period, and the
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`individuals likely to be involved if any infringement occurred. These allegations put BANA on
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`notice, permitting it to defend itself. In addition, EIG’s allegations as to Oil Daily and Natural
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`Gas Week make it quite plausible that BANA employees subscribed to the other four EIG
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`publications engaged in similar conduct.
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`Moreover, as EIG correctly notes, evidence of BANA employees’ conduct regarding the
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`other four publications is “peculiarly within the possession and control of the defendant.” Arista
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`Records, LLC v. Doe 3, 604 F.3d 110, 120 (2nd Cir. 2010). That is, it is likely to be found on the
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`servers and computers of BANA, which are inaccessible to EIG until discovery commences. At
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`13
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`Case 4:17-cv-03767 Document 42 Filed in TXSD on 07/05/18 Page 14 of 14
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`the pleading stage, “when discoverable information is in the control and possession of a
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`defendant, it is not necessarily the plaintiff’s responsibility to provide that information in [its]
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`complaint.” Innova Hosp. San Antonio, L.P. v. Blue Cross and Blue Shield of Ga., Inc., --- F.3d -
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`---, 2018 WL 2943339, at *6 (5th Cir. 2018). In such cases, the plaintiff may allege facts upon
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`information and belief. Id. (citing Arista Records, 604 F.3d at 120). EIG has validly done so
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`here.
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`IV. CONCLUSION
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`Defendant Bank of America N.A. has moved this Court to transfer this action to the
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`Southern District of New York or else to dismiss it for failure to state a claim upon which relief
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`may be granted. (Doc. No. 32.) BANA has, however, not met its burden of showing that the
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`transferee district would be clearly more convenient than this one. Moreover, the complaint filed
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`by Plaintiffs Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited states
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`valid copyright infringement claims supported by adequate factual allegations. Accordingly,
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`BANA’s motion is DENIED.
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`IT IS SO ORDERED.
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`SIGNED at Houston, Texas, on the 5th day of July, 2018.
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`KEITH P. ELLISON
`UNITED STATES DISTRICT JUDGE
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