Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 1 of 19
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`EXPRESS MOBILE, INC.,
`
`Civil Action No. 6:20-cv-00802-ADA
`
`v.
`
`eBay Inc.,
`
`Plaintiff,
`
`Defendant.
`
`Jury Trial Demanded
`
`PUBLIC VERSION
`
`
`
`
`
`
`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER
`VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA (ECF 24)
`
`
`
`
`
`
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 2 of 19
`
`TABLE OF CONTENTS
`INTRODUCTION .................................................................................................................. 1
`I.
`II. RELEVANT BACKGROUND .............................................................................................. 2
`III.
`LEGAL STANDARD ......................................................................................................... 2
`IV.
`ARGUMENT ...................................................................................................................... 4
`A. The Private Factors Weigh Against Transfer. ..................................................................... 4
`1. Ease of Access to Sources of Proof Weighs Against Transfer to NDCA. ...................... 4
`a)
`eBay sources of proof weigh against transfer. ............................................................ 4
`b) Third-party sources of proof weigh against transfer. .................................................. 8
`2. The Availability of the Compulsory Process to Secure the Attendance of Witnesses
`Does Not Support Transfer. .................................................................................................. 10
`3. The Convenience of Willing Witnesses Factor Weighs Against Transfer. .................. 10
`4.
`Judicial Economy Does Not Favor Transfer and the “all other practical issues” factor is
`neutral. .................................................................................................................................. 11
`B. The Public Factors Weigh Against Transfer. .................................................................... 12
`1. Administrative Difficulties Flowing from Court Congestion Weigh Against Transfer.
`
`12
`2. There is Decided Local Interest in this Case Which Weighs Against Transfer. ........... 13
`3. Public Factors 3 & 4: Familiarity with the Law and Avoidance of Problems of
`Conflicts of Law or Application of Foreign are Neutral. ...................................................... 13
`V. CONCLUSION ..................................................................................................................... 14
`
`
`
`
`
`
`
`
` i
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 3 of 19
`
`TABLE OF AUTHORITIES
`
`Cases
`AGIS Software Dev. LLC v. Huawei Device USA Inc.,
`No. 2:17-CV-00513-JRG, 2018 WL 2329752 (E.D. Tex. May 23, 2018) ................................. 2
`Babbage Holdings, LLC v. 505 Games (U.S.), Inc.,
`No. 13-cv-749, 2014 WL 4956763 (E.D. Tex. Oct. 1, 2014) ..................................................... 3
`CloudofChange, LLC v. NCR Corp.,
`No. 6:19-cv-00513, 2020 WL 6439178 (W.D. Tex. Mar. 17, 2020) ........................................ 10
`Copeland v. City of Killeen,
`No. A-10-CA-338-SS, 2010 WL 2732532 (W.D. Tex. July 8, 2010) ........................................ 6
`Datascape, Ltd. v. Dell Technologies, Inc.,
`No. 6:19-CV-00129-ADA, 2019 WL 4254069 (W.D. Tex. June 7, 2019) ................................ 6
`Duha v. Agrium, Inc.,
`448 F.3d 867 (6th Cir. 2006) .................................................................................................... 10
`eRoad Ltd. v. PerDiemCo LLC,
`No. 6:19-cv-00026-ADA, 2019 WL 10303654 (W.D. Tex. Sept. 19, 2019) ....................... 3, 12
`Fintiv, Inc. v. Apple Inc.,
`No. 6:18-cv-00372-ADA, 2019 WL 4743678 (W.D. Tex. Sept. 13, 2019) ........................... 6, 8
`Hammond Dev. Int’l, Inc. v. Google LLC,
`No. 1:20-cv-00342-ADA, 2020 WL 3452987 (W.D. Tex. June 24, 2020) ................................ 1
`Impulsora de Marcas e Intangibles, S.A. DE C.V. v. Dos Amigos, Inc.,
`No. 6:19-cv-00453-ADA, 2020 WL 4577712 (W.D. Tex. Apr. 9, 2020) .................................. 6
`In re Apple Inc.,
`818 Fed. Appx. 1001 (Fed. Cir. 2020) .................................................................................. 9, 13
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009) ................................................................................................ 13
`In re Radmax,
`720 F.3d 285 (5th Cir. 2013) .................................................................................................... 10
`In re Vistaprint Ltd.,
`628 F.3d 1342 (Fed. Cir. 2010) .................................................................................................. 3
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ...................................................................................................... 3
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ...................................................................................................... 2
`LBS Innovations, LLC v. Apple Inc.,
`2:19-cv-00119-JRG-RSP, 2020 WL 923887 (E.D. Tex. Feb. 26, 2020) .................................... 2
`Piper Aircraft Co. v. Reyno,
`454 U.S. 235 (1981) .................................................................................................................... 3
`
`
`
` ii
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 4 of 19
`
`Quest NetTech Corp. v. Apple, Inc.,
`No. 2:19-cv-00118-JRG, 2019 WL 6344267 (E.D. Tex. Nov. 27, 2019) .................................. 1
`Rockstar Consortium US LP, et al. v. Google Inc.,
`No. 2:13-cv-893-JRG-RSP, 2014 WL 4748692 (E.D. Tex. Sept. 23, 2014) .......................... 5, 7
`Seven Networks, LLC v. Google LLC,
`No. 2:17-CV-00442-JRG, 2018 WL 4026760 (E.D. Tex. Aug. 15, 2018) ............................ 1, 7
`Sivertson v. Clinton,
`No. 3:11-cv-0836-D, 2011 WL 4100958 (N.D. Tex. Sept. 14, 2011) ........................................ 3
`Solas OLED Ltd. v. Apple Inc.,
`No. 6:19-cv-00537-ADA, 2020 WL 3440956 (W.D. Tex. June 23, 2020) ................................ 6
`VLSI Tech., LLC v. Intel Corp.,
`No. 6:19-cv-000254-ADA, 2019 WL 4254065 (W.D. Tex. Aug. 6, 2019) ............................. 14
`Weatherford Tech. Holdings, LLC v. Tesco Corp.,
`No. 2:17-cv-00456-JRG, 2018 WL 4620636 (E.D. Tex. May 22, 2018) ................................... 3
`
`
`
`
`
`
`
` iii
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 5 of 19
`
`I.
`
`INTRODUCTION
`
`Plaintiff Express Mobile, Inc. (“Express Mobile”) files this response in opposition to
`
`Defendant eBay Inc.’s (“eBay”) Motion to Transfer (“Motion”). eBay maintains extensive
`
`business operations in this District, with many employees directly working on or having extensive
`
`knowledge of the Accused Instrumentality. eBay cannot expect to extensively conduct business
`
`in this venue without being subject to this venue’s jurisdiction, and accordingly, eBay should have
`
`to defend this lawsuit in this venue. Further, all of the relevant private and public factors weigh
`
`against transfer. eBay is only able to specifically name a few witnesses in the Northern District of
`
`California (“NDCA”) and ignores the fact that this District has many relevant witnesses and
`
`sources of proof. Conversely, although Express Mobile is located in NDCA, it is a small company,
`
`and its witnesses are willing to travel to this District for trial. Moreover, Express Mobile already
`
`has five cases involving the same Asserted Patents pending before this Court,1 and thus transfer
`
`would not be in the interest of judicial economy.
`
`eBay, as the moving party, fails to meet its heavy burden, which is “materially more than
`
`a mere preponderance of convenience.” Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-00118-
`
`JRG, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019). eBay does not come close to meeting
`
`this significant burden as courts routinely refuse to transfer cases even when several factors weigh
`
`in favor of transfer. See, e.g., Hammond Dev. Int’l, Inc. v. Google LLC, No. 1:20-cv-00342-ADA,
`
`2020 WL 3452987, at *5 (W.D. Tex. June 24, 2020) (denying motion to transfer, despite access
`
`to proof and local interests weighing in favor of transfer); Seven Networks, LLC v. Google LLC,
`
`No. 2:17-CV-00442-JRG, 2018 WL 4026760, at *16 (E.D. Tex. Aug. 15, 2018) (denying motion
`
`
`
` 1
`
` Express Mobile, Inc. v. Expedia Group, Inc., et al., 6:20-cv-801-ADA; (2) Express Mobile, Inc.
`v. Google LLC, 6:20-cv-804-ADA; (3) Express Mobile, Inc. v. Facebook, Inc. 6:20-cv-803-ADA;
`(4) Express Mobile, Inc. v. Atlassian Corp. PLC, et al., 6:20-cv-805; and (5) the instant case.
`
`
`
` 1
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 6 of 19
`
`to transfer, even where the availability of compulsory process and cost of attendance to willing
`
`witnesses weighed in favor of transfer); LBS Innovations, LLC v. Apple Inc., 2:19-cv-00119-JRG-
`
`RSP, 2020 WL 923887, at *7 (E.D. Tex. Feb. 26, 2020) (denying motion to transfer, even where
`
`access to proof and local interest weighed in favor of transfer); AGIS Software Dev. LLC v. Huawei
`
`Device USA Inc., No. 2:17-CV-00513-JRG, 2018 WL 2329752, at *9 (E.D. Tex. May 23, 2018)
`
`(denying motion to transfer, even where access to proof and availability of compulsory process
`
`weighed in favor of transfer).
`
`Because the relevant private and public factors weigh against transfer, and eBay, as the
`
`moving party, fails to meet its heavy burden, the Court should deny the Motion to Transfer.
`
`II.
`
`RELEVANT BACKGROUND
`
`Express Mobile alleges patent infringement of two patents against eBay. These patents
`
`solve technical problems related to website creation and generation through various browser-based
`
`tools. Dkt. 1 at ¶¶ 11, 17.
`
`eBay’s listings and stores platforms, including the hardware and software used to support
`
`these platforms, are accused of infringement. See, e.g., Dkt. 1 at ¶¶ 32-45, 51-74.
`
`eBay has an office at 7700 W Parmer Lane, Austin, TX 78729. See Dkt. 1 at ¶ 7.
`
`III. LEGAL STANDARD
`
`The party moving for transfer carries the burden of showing good cause. In re Volkswagen
`
`of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) [hereinafter Volkswagen II] (“When viewed in the
`
`context of §1404(a), to show good cause means that a moving party, in order to support its claim
`
`for a transfer, must…clearly demonstrate that a transfer is ‘[f]or the convenience of parties and
`
`witnesses, in the interest of justice.’” (quoting 28 U.S.C. §1404(a)).
`
`
`
`When analyzing these factors, the Court makes determinations based “on an
`
`‘individualized, case-by-case consideration of convenience and fairness.’” In re Vistaprint Ltd.,
`
`
`
` 2
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 7 of 19
`
`628 F.3d 1342 (Fed. Cir. 2010). This Court will consider both private and public factors.
`
`The private factors include: “(1) the relative ease of access to sources of proof; (2) the availability
`
`of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing
`
`witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and
`
`inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) [hereinafter Volkswagen
`
`I] (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The public factors include:
`
`“(1) the administrative difficulties flowing from court congestion; (2) the local interest in having
`
`localized interests decided at home; (3) the familiarity of the forum with the law that will govern
`
`the case; and (4) the avoidance of unnecessary problems of conflict of laws or the application of
`
`foreign law.” Id.
`
`“A plaintiff’s selection of venue is entitled to deference.” eRoad Ltd. v. PerDiemCo LLC,
`
`No. 6:19-cv-00026-ADA, 2019 WL 10303654, at *4 (W.D. Tex. Sept. 19, 2019). A court may
`
`“consider undisputed facts outside the pleadings…but it must draw all reasonable inferences and
`
`resolve factual conflicts in favor of the non-moving party.” Weatherford Tech. Holdings, LLC v.
`
`Tesco Corp., No. 2:17-cv-00456-JRG, 2018 WL 4620636, at *2 (E.D. Tex. May 22, 2018).
`
`“[W]hen the transferee venue is not clearly more convenient than the venue chosen by the
`
`plaintiff, the plaintiff’s choice should be respected.” Volkswagen II, 545 F.3d at 315; see also QR
`
`Spex, Inc. v. Motorola, Inc., 507 F.Supp. 2d 650, 664 (characterizing movant’s burden under
`
`§1404(a) as “heavy”); Babbage Holdings, LLC v. 505 Games (U.S.), Inc., No. 2:13-cv-749-JRG,
`
`2014 WL 4956763, at *4 (E.D. Tex. Oct. 1, 2014) (the movant must establish “that the movant’s
`
`desired forum is clearly more convenient than the forum where the case was filed.”). “The court
`
`cannot transfer a case where the result is merely to shift the inconvenience of the venue from one
`
`party to the other.” Sivertson v. Clinton, No. 3:11-cv-0836-D, 2011 WL 4100958, at *3 (N.D.
`
`Tex. Sept. 14, 2011).
`
`
`
` 3
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 8 of 19
`
`IV. ARGUMENT
`
`All of the relevant private and public factors weigh against transfer or are neutral. Below
`
`is a table summarizing the relevant factors:
`
`FACTORS
`
`Private Factors
`
`VENUE
`
`
`
`Relative ease of access to sources of proof. WDTX
`
`Availability of the compulsory process.
`
`Cost of attendance for willing witnesses.
`
`All other practical problems that problems that
`make trial of a case easy, expeditious, and
`inexpensive.
`Public Factors
`
`Administrative difficulties flowing from court
`congestion.
`Local interest in having localized interests
`decided at home.
`Avoidance of unnecessary problems of
`conflict of laws.
`Familiarity of the forum with the law that will
`govern the case.
`
`WDTX
`
`WDTX
`
`Neutral
`
`
`
`WDTX
`
`WDTX
`
`Neutral
`
`Neutral
`
`A.
`
`The Private Factors Weigh Against Transfer.
`1.
`
`Ease of Access to Sources of Proof Weighs Against Transfer to NDCA.
`
`a)
`
`eBay sources of proof weigh against transfer.
`
`The record reflects just as many relevant eBay witnesses in WDTX as NDCA.
`
`
`
`
`
`
`
`
`
`
`
` 4
`
`
`
`
`
`
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 9 of 19
`
`
`
`
`
` Federal courts in Texas have held that “[t]he duty of candor…is
`
`especially important in the Motion to Transfer context” and if the moving party offers less-than-
`
`complete-information on where the relevant sources of proof are located, this weighs against
`
`transfer. See Rockstar Consortium US LP, et al. v. Google Inc., No. 2:13-cv-893-JRG-RSP, 2014
`
`WL 4748692, at *8 (E.D. Tex. Sept. 23, 2014).
`
`
`
`The two eBay declarations also ignore relevant eBay witnesses in WDTX. For example,
`
`Andre LeBlanc is the Chief of Staff for eBay Stores and leads a team responsible for the infringing
`
`eBay Stores product. Ex. 1. Abdullah Rababah currently serves as a Senior Staff Software
`
`Engineer – Front End/Full Stack at eBay and is involved in building front end web components to
`
`support the accused products. Ex 2. Mr. Rababah has prior experience at eBay building interactive
`
`web applications, front-end components, and frameworks emphasizing multi-screen and multi-
`
`browser capabilities, a key component of the accused products and the patents-in-suit.
`
`Furthermore, Mr. Rababah is the top contributor to eBay’s internal open source platform,
`
`suggesting he has more knowledge than most eBay employees regarding the design and function
`
`of the accused products. Saranya Vedagiri is a Member of Technical Staff at eBay and is involved
`
`with building solutions for consumer sellers in order to support the accused products. Ex 3.
`
`eBay’s listings and Stores platforms (i.e., the accused products) cover the majority of the
`
`products and services provided to eBay’s customers and sellers. See, e.g., www.ebay.com. Thus,
`
`many of the 500 or more eBay employees working in eBay’s Austin office support the design,
`
`function, and marketing of the accused products, either directly or indirectly.2 There are also
`
`
`
` https://careers.ebayinc.com/find-jobs-by-location/detail/austin. Ex. 4.
`
` 5
`
`
` 2
`
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 10 of 19
`
`numerous eBay marketing and sales employees,3 and software engineers4 in eBay’s Austin offices
`
`that are linked to the accused products. These employees are relevant to damages and infringement
`
`issues.
`
`In light of the foregoing, the record reflects at least as many relevant eBay witnesses in
`
`WDTX as NDCA. Moreover, any unnamed eBay witnesses in NDCA do not count in the
`
`convenience-transfer calculus, and eBay cannot name any other such witnesses for the first time
`
`in Reply. Copeland v. City of Killeen, No. A-10-CA-338-SS, 2010 WL 2732532, at *4 (W.D. Tex.
`
`July 8, 2010); Impulsora de Marcas e Intangibles, S.A. DE C.V. v. Dos Amigos, Inc., No. 6:19-cv-
`
`00453-ADA, 2020 WL 4577712, at *4 (W.D. Tex. Apr. 9, 2020); Datascape, Ltd. v. Dell
`
`Technologies, Inc., No. 6:19-CV-00129-ADA, 2019 WL 4254069, at *2 (W.D. Tex. June 7, 2019);
`
`Fintiv, Inc. v. Apple Inc., No. 6:18-cv-00372-ADA, 2019 WL 4743678, at *8 (W.D. Tex. Sept. 13,
`
`2019); Solas OLED Ltd. v. Apple Inc., No. 6:19-cv-00537-ADA, 2020 WL 3440956, at *4 (W.D.
`
`Tex. June 23, 2020).
`
`The eBay employee witnesses in WDTX necessarily have or have access to documents
`
`pertaining to the infringing products. Fintiv, Inc, WL 2019 4743678, at *4 (“In modern patent
`
`litigation, documents are located on a server, which may or may not be in the transferee district
`
`(or given the use of cloud-based storage, may be located on multiple servers in multiple districts,
`
`or even multiple countries) and are equally accessible from both the transferee and transferor
`
`
`
` 3
`
` Alexis Gallivan, Ari Kharat, Carisa Quintanilla, Emma Clement, Kris Cooksley, Adriana Pierce,
`Carles Marty, Jorge Davila, Peter Gregg, Carolyn Fronger, Chelsea Hickman, Patrina O’Brien,
`Meagan Conley Grace, Hannah Sasson, Olga Yaguez. Ex. 5.
`4 Venkatesh Thiagarajan, Mahendra Nagubandi, Praveen Katakam, Girish Lal Pudieduth, Jason
`Flenniken, Kalpana Kanapuram, Yumi Carlson, Emil Dides, Karthik Tsaliki, Peilin Yang, Viet
`Tran, Binu Rajan Babu, Alex Styler, Sri Kiran Panchavati, Xiangzhe Li, Daniel Ricaud, R.
`Poonam, Srikanth Nadella, Akshay Gadkari, John Gram, Shaurya Chopra, Vivek G., Kunwardeep
`Singh, Mohamed Sallam, Kunal Kulkarni, Emaly Martinez, Badrinarayanan Ramaswami, Akhash
`Ramamurthy, Aseal Yousuf, Arpit Shah. Ex. 6.
`
`
`
` 6
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 11 of 19
`
`districts.”).
`
`
`
`
`
`
`
`
`
`
`
`anywhere in the world, including WDTX.
`
` Such documents can just as easily be replicated to
`
`
`
`
`
`
`
`Beyond this, eBay does not offer many specifics as to where relevant sources of proof are
`
`specifically located,
`
` Historically, courts have rejected this type of vague statement
`
`regarding the location of documents. In Rockstar Consortium, the court determined that the
`
`defendant’s transfer motion did “not appear to offer any evidence regarding the location of its
`
`relevant documents or infrastructure.” Rockstar Consortium, 2014 WL 4748692, at *3.
`
`Accordingly, there, the court determined that without detailing specifics, the defendant’s “Motion
`
`provide[d] neither evidence of where its documents are actually located nor evidence that these
`
`documents are more available or accessible from the Northern District of California…” Id.
`
`Moreover, in Seven Networks, when the defendant contended that relevant sources of proof were
`
`maintained in NDCA, the court held that many of relevant documents were “hosted in secure
`
`servers managed from its Northern California offices,” whereas much of the defendant’s electronic
`
`records were “not stored in its Northern California offices.” Seven Networks, 2018 WL 4026760,
`
`at *2 (emphasis in original). This is the level of specificity required by the courts, and eBay must
`
`offer specific evidence that its relevant, meaningful sources of proof are located in NDCA.
`
`
`
` 7
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 12 of 19
`
`
`
`In sum, eBay’s sources of proof located in WDTX—both witnesses and documents—are
`
`highly relevant and important to this case. eBay can only identify four employees in NDCA and
`
`cannot specifically demonstrate any sources of proof in NDCA. Accordingly, the eBay sources of
`
`proof weigh against transfer.
`
`b)
`
`Third-party sources of proof weigh against transfer.
`
`There are numerous sources of alleged prior art from companies that are headquartered or
`
`have significant offices in this District, as identified in various defendants’ invalidity contentions.
`
`This list includes Oracle (headquartered in this District), AT&T (headquartered in Dallas with
`
`significant offices in Austin), Apple (one of the largest employers in the District5), OpenText,
`
`IBM, Cisco, eBay, and RIM/Blackberry. Exs. 7-23, Belloli Decl. ¶¶8-25. eBay has not disclaimed
`
`use of any of this alleged prior art that is being asserted in other cases. These third-party sources
`
`of proof identified by Express Mobile concerning invalidity should receive at least as much or
`
`more weight than the third parties identified by eBay. See Fintiv, 2019 WL 4743678, at *8.
`
`Indeed, eBay identifies a prosecuting attorney but fails to explain why he is relevant to any
`
`issue in this case other than that he “may” have documents. Dkt. 24-2 at 5, 7. This former
`
`prosecuting attorney is not relevant, and Express Mobile has the prosecution-related documents.
`
`eBay points to DSS but cannot muster a rationale for DSS’s relevance to this case, merely
`
`noting that DSS “has taken an ownership interest in Express Mobile and has licensed Express
`
`Mobile’s technology.” Dkt. 24 at 7. This is a patent case concerning eBay’s infringement, not an
`
`ownership dispute. DSS is not relevant to this case in any way, particularly not in light of eBay’s
`
`conclusory assertion.
`
`Finally, eBay’s assertion that Microsoft, Mozilla, Apple and Google will have relevant
`
`
`
` In re: Apple Inc., 818 Fed. Appx. 1001, 1002 (Fed. Cir. 2020).
`
` 8
`
`
` 5
`
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 13 of 19
`
`information is irrelevant to the transfer analysis–when three of these four companies have
`
`significant presence in WDTX. Indeed, Apple is one the largest employers in this District as noted
`
`above. In re Apple Inc., 818 Fed. Appx. at 1002. Google has a significant presence in this District
`
`and is a defendant in this District with respect to Express Mobile’s patents. See No. 20-CV-804
`
`Dkt. No. 47. at 5-8. eBay also acknowledges Microsoft’s presence in WDTX, which is substantial.
`
`Dkt. 24 at 7.6
`
`In sum, the third parties identified by Express Mobile weigh against transfer given the
`
`relevance of the sources of evidence. Moreover, the majority of the third parties identified by
`
`eBay are either not relevant (a former prosecuting attorney and DSS) or also reside in this District
`
`(Apple, Microsoft and Google). Accordingly, third party sources of proof weigh against transfer.
`
`
`
`Finally, with respect to Express Mobile’s sources of proof, NDCA is not clearly more
`
`convenient. Express Mobile may call two of its own witnesses at trial—Mr. Rempell (the inventor)
`
`and Mr. Samuelson (the CEO). Exs. 24, 26. Mr. Samuelson is located in New York and WDTX
`
`is more convenient for him than NDCA. Regardless, both are willing to travel to WDTX for trial.
`
`Id. While eBay also points to John Rizzo (a Director of Express Mobile) and Cheryl Kudelka
`
`(CFO of Express Mobile), it fails to explain how either are relevant to this case. eBay Motion at
`
`8. Thus, while both Mr. Rizzo and Ms. Kudelka are willing to travel to WDTX for trial, they
`
`should not even be considered in the transfer analysis because they have no established relevance
`
`and Express Mobile does not intend to call either as a witness. See Exs. 25, 28
`
`
`
`In sum, given eBay’s extensive presence in this District, coupled with relevant witnesses
`
`and sources of proof in this District, this factor weighs heavily against transfer. See In re Radmax,
`
`
`
` 6
`
` Microsoft has numerous offices in Texas: Austin, Houston, San Antonio, Dallas, Friendswood,
`Frisco, and The Woodlands. See https://www.microsoft.com/en-us/about/officelocator/all-offices.
`Last visited March 10, 2021. Ex. No. 27.
`
`
`
` 9
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 14 of 19
`
`Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (holding that “the question is relative ease of access, not
`
`absolute ease of access”) (emphasis in original).
`
`2.
`The Availability of the Compulsory Process to Secure the Attendance
`of Witnesses Does Not Support Transfer.
`
`eBay does not mention any potential witnesses that are unwilling to testify. As such, eBay
`
`fails to meet its burden in arguing this factor because “[w]hen no party has alleged or shown any
`
`witness’s unwillingness, a court should not attach much weight to the compulsory process factor.”
`
`CloudofChange, LLC v. NCR Corp., No. 6:19-cv-00513, 2020 WL 6439178, at * 4 (W.D. Tex.
`
`Mar. 17, 2020) (citing Duha v. Agrium, Inc., 448 F.3d 867, 877 (6th Cir. 2006).
`
`Even if eBay were to raise this issue in its Reply brief, the Court should not give much
`
`credence to eBay’s argument because the evidence does not show that this factor weighs in favor
`
`of transfer. eBay has named only four witnesses in NDCA, while there are numerous relevant
`
`eBay employee witnesses in this District who would not be subject to NDCA’s subpoena power.
`
`Moreover, the Express Mobile witnesses are willing to travel to this District to appear for
`
`trial. Exs. 24-26, 28. Also, as mentioned above, there are also numerous relevant third parties in
`
`this District. Exs. 7-23.
`
`Accordingly, the availability of the compulsory process weighs against transfer.
`
`3.
`The Convenience of Willing Witnesses Factor Weighs Against
`Transfer.
`
`The Federal Circuit determined that “[t]he convenience of the witnesses is probably the
`
`single most important factor in [a venue] transfer analysis.” In re Genentech, Inc., 566 F.3d 1338,
`
`1343 (Fed. Cir. 2009). Thus, in terms of eBay witnesses residing in this District, this District is
`
`clearly more convenient.
`
`
`
` 10
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 15 of 19
`
`In terms of third parties, Express Mobile has identified more third parties in this District
`
`than eBay did in NDCA. Moreover, several of the third parties identified by eBay are irrelevant
`
`or have a presence in this District, as discussed above.
`
`In terms of Express Mobile witnesses, one witness, Mr. Samuelson, is located in New York
`
`and this District is more convenient for him. See Ex. 28. While Express Mobile’s other witness,
`
`Mr. Rempell, is located in NDCA, he is willing to travel to WDTX for trial. Ex. 24. Finally, while
`
`Mr. Rizzo and Ms. Kudelka are not relevant to this case (as explained above), they too are willing
`
`to travel to WDTX for trial. Ex. 25, 28.
`
`In sum, this factor weighs heavily against transfer.
`
`4.
`Judicial Economy Does Not Favor Transfer and the “all other practical
`issues” factor is neutral.
`
`eBay insists that this case should be transferred for purposes of judicial economy, despite
`
`judicial economy not being one of the enumerated private factors considered. Here, however,
`
`transfer would not even be in the interest of judicial economy. See Tinnus Enters., LLC v.
`
`Telebrands Corp., et al., No. 6:15-cv-00551 RWS-JDL, 2015 WL 11090494, at *7 (E.D. Tex.
`
`Aug. 31, 2015) (“Although judicial economy is not among the list of the enumerated factors, it can
`
`be a consideration when determining whether a transfer is in the interest of justice.”) (emphasis
`
`added). This Court has held that “[m]ultiple suits involving the same or similar issues may create
`
`practical problems that will weigh in favor of or against transfer.” SynKloud Technologies, LLC
`
`v. Dropbox, Inc., No. 6:19-cv-00526-ADA, 2020 WL 2528545, at *6 (W.D. Tex. May 18, 2020).
`
`Here, there are numerous cases concerning the patents-in-suit both in WDTX and in NDCA. As
`
`such, this factor is neutral. Express Mobile has five pending cases before this Court: (1) Express
`
`Mobile, Inc. v. Expedia Group, Inc., 6:20-cv-801-ADA; (2) Express Mobile, Inc. v. Google LLC,
`
`6:20-cv-804-ADA; (3) Express Mobile, Inc. v. Facebook, Inc., 6:20-cv-803-ADA; (4) Express
`
`Mobile, Inc. v. Atlassian Corp. PLC et al., 20-cv-805; and (5) the instant case. The Federal Circuit
`
`
`
` 11
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 16 of 19
`
`has held it is important when “there is co-pending litigation before the trial court involving the
`
`same patent and underlying technology.” In re Vistaprint Ltd., 628 F.3d at 1346 (applying Fifth
`
`Circuit law). Further, a transfer could “lead to [ ] separate cases in two separate [c]ourts about the
`
`same claims in the same patents, which [could] create a disruption in judicial economy, not to
`
`mention a possibility of obtaining inconsistent rulings.” STC.UNM v. Apple Inc., No. 6:19-cv-
`
`00428-ADA, 2020 WL 4559706, at *7 (W.D. Tex. Apr. 1, 2020). Here, due to the five pending
`
`cases before this Court, a transfer could easily have the opposite effect of preserving judicial
`
`economy as a transfer would increase the likelihood of inconsistent rulings and thus create an
`
`unnecessary burden for this Court. All of these cases involve the same patents-in-suit as the eBay
`
`case. Thus, this factor is at most neutral because there are going to be a fair number of cases in
`
`both districts regardless of whether this case is transferred. This Court will be addressing the same
`
`issues as the NDCA court regardless of whether this case is transferred.
`
`Accordingly, judicial economy is not served by transfer and the “all other practical issues”
`
`factor is neutral.
`
`B.
`
`The Public Factors Weigh Against Transfer.
`1.
`Administrative Difficulties Flowing from Court Congestion Weigh
`Against Transfer.
`
`This first public factor weighs against transfer. The relevant inquiry for this factor is “[t]he
`
`speed with which a case can come to trial and be resolved[.]” In re Genentech, 566 F.3d at 1347.
`
`This Court has noted before that the median time to trial in civil cases in WDTX is 25% faster than
`
`the time to trial in NDCA, and this weighs against transfer. SynKloud Technologies, LLC, 2020
`
`WL 2528545, at *7 (citing Fintiv, 2019 WL 4743678, at *7). Specifically, data shows that the
`
`time to trial particularly in patent cases has been faster in this forum. Voxer, Inc. v. Facebook Inc.
`
`and Instagram LLC, No. 6:20-cv-00011-ADA, 2020 WL 3416012, at *6. This Court’s typical
`
`time to trial in patent cases is less than 18 months after filing. eRoad Ltd., 2019 WL 10303654, at
`
`
`
` 12
`
`
`

`

`Case 6:20-cv-00802-ADA Document 37 Filed 03/17/21 Page 17 of 19
`
`*7. Since this case has already been pending since early fall of last year, this Court has a head
`
`start and would presumably go to trial sooner than any court that would receive this case via
`
`transfer more than half a year after the Complaint was originally filed.
`
`Thus, this factor weighs against transfer.
`
`2.
`There is Decided Local Interest in this Case Which Weighs Against
`Transfer.
`
`eBay cites In re Apple to argue there is no local interest here. Dkt. 24 at 10. Not so. In In
`
`re Apple, the Federal Circuit relied on In re Hoffmann-La Roche in holding that transfer was proper
`
`“because the accused products were designed, developed, and tested in NDCA; and because the
`
`lawsuit ‘calls into question the work and reputation of several individuals residing’ in NDCA.” In
`
`re: Apple, 979 F.3d 1332, 1345 (Fed. Cir. 2020) (quoting In re Hoffmann-La Roche Inc., 587 F.3d
`
`1333, 1336 (Fed. Cir. 2009)). However, in making this argument, eBay selectively reveals the
`
`Federal Circuit’s reasoning.
`
`eBay’s extensive business operations in this District, with some of its Texas employees
`
`becoming relevant witnesses, demonstrates that there is a strong local interest. See In re Hoffmann-
`
`La Roche Inc., 587 F.3d 1333, 1336 (Fed. Cir. 2009) (determining that the local interest is “strong
`
`because the cause of action calls into question the work and reputation of several ind