Case 6:21-cv-00569-ADA Document 51-8 Filed 04/28/22 Page 1 of 13
`Case 6:21-cv-00569-ADA Document 51-8 Filed 04/28/22 Page 1 of 13
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`EXHIBIT AD
`EXHIBIT AD
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`Case 1:20-cv-00342-ADA Document 89 Filed 06/24/20 Page 1 of 12Case 6:21-cv-00569-ADA Document 51-8 Filed 04/28/22 Page 2 of 13
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`IN THE UNITED STATES DISTRICT COURT
` FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`HAMMOND DEVELOPMENT
`INTERNATIONAL, INC.,
`Plaintiff,
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`
`v.
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`GOOGLE LLC.,
`Defendant
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`
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`CIVIL ACTION 1:20-cv-00342-ADA
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`§
`§
`§
`§
`§
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`§
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`ORDER DENYING DEFENDANT GOOGLE’S
`MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a)
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`Came on for consideration this date the Motion of Defendant Google to transfer under 28
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`U.S.C. § 1404(a), filed on October 23, 2019. ECF No. 42. Plaintiff Hammond Development
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`International, Inc. (hereinafter “HDI”) filed its response on October 30, 2019 (ECF No. 46) and
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`Google replied on November 6, 2019 (ECF No. 49).
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`After careful consideration of the arguments made, the Court DENIES Google’s motion
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`to transfer the case to the Northern District of California, but GRANTS Google’s alternative
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`motion to transfer the case to the Austin Division of the Western District of Texas, for the
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`reasons described below.
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`I.
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`Factual Background and Procedural History
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`HDI filed this lawsuit on June 6, 2018, alleging infringement of the following patents:
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`U.S. Patent No. 9,264,483; U.S. Patent No. 9,420,011; U.S. Patent No. 9,456,040; U.S. Patent
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`No. 9,705,937; U.S. Patent No. 9,716,732; U.S. Patent No. 10,193,935; U.S. Patent No.
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`10,264,032; and U.S. Patent No. 10,270,816. ECF No. 1 at ¶ 17. The title of all the Patents are
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`“Method and System for Enabling a Communication.” Id. at ¶ 18–58. According to HDI, Google
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`makes, uses, sells, offers to sell, or imports into the US systems for enabling a communication
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`device to remotely execute an application as claimed in each of the Patents-in-Suit. Id. at ¶ 67.
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`HDI alleges that Google Home, Google Home Mini, Google Home Max, Google Nest Hub,
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`Google Nest Hub Max, and other Google Assistant-enabled devices associated with the Google
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`Cloud Platform infringe the Patents-in-Suit. Id. at ¶ 68.
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`On October 11, 2019, this Court ordered that this case be consolidated with the Amazon
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`case. After consolidation, Google filed a motion to transfer venue under 28 U.S.C. § 1404(a)
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`requesting that the case be transferred to the Northern District of California (“NDCA”) or, in the
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`alternative, to the Austin Division of the Western District of Texas (“WDTX”). ECF No. 42 at 1.
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`II.
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`Standard of Review
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`Title 28 U.S.C. § 1404(a) provides that, for the convenience of parties and witnesses, a
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`district court may transfer any civil action to any other district or division where it might have
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`been brought or to any district or division to which all parties have consented. “Section 1404(a)
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`is intended to place discretion in the district court to adjudicate motions for transfer according to
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`an ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc.
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`v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622
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`(1964)). The party moving for transfer carries the burden of showing good cause. In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 314 (5th Cir. 2008) (hereinafter “Volkswagen II”)
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`(“When viewed in the context of § 1404(a), to show good cause means that a moving party, in
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`order to support its claim for a transfer, must . . . clearly demonstrate that a transfer is ‘[f]or the
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`convenience of parties and witnesses, in the interest of justice.’”) (quoting 28 U.S.C. § 1404(a)).
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`“The preliminary question under § 1404(a) is whether a civil action ‘might have been
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`brought’ in the destination venue.” Volkswagen II, 545 F.3d at 312. If so, in the Fifth Circuit, the
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`“[t]he determination of ‘convenience’ turns on a number of public and private interest factors,
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`none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar.
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`Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of
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`access to sources of proof; (2) the availability of compulsory process to secure the attendance of
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`witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems
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`that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201,
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`203 (5th Cir. 2004) (hereinafter “Volkswagen I”) (citing to Piper Aircraft Co. v. Reyno, 454 U.S.
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`235, 241 n.6 (1982)). The public factors 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 of the application of foreign law.” Id. Courts evaluate
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`these factors based on “the situation which existed when suit was instituted.” Hoffman v. Blaski,
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`363 U.S. 335, 343 (1960).
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`Courts may “consider undisputed facts outside the pleadings, but it must draw all
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`reasonable inferences and resolve all factual conflicts in favor of the non-moving party.”
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`Weatherford Tech. Holdings, LLC v. Tesco Corp., No. 2:17-CV-00456-JRG, 2018 WL 4620636,
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`at *2 (E.D. Tex. May 16, 2019).
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`A plaintiff’s choice of venue is not an independent factor in the venue transfer analysis,
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`and courts must not give inordinate weight to a plaintiff’s choice of venue. Volkswagen II, 545
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`F.3d at 314 n.10, 315 (“[W]hile a plaintiff has the privilege of filing his claims in any judicial
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`division appropriate under the general venue statute, § 1404(a) tempers the effects of the exercise
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`of this privilege.”). However, “when the transferee venue is not clearly more convenient than the
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`venue chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. at 315; see also QR
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`Spex, Inc. v. Motorola, Inc., 507 F.Supp.2d 650, 664 (E.D. Tex. 2007) (characterizing movant’s
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`burden under § 1404(a) as “heavy”).
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`III. Discussion regarding transfer to the Northern District of California
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`As a preliminary matter, neither party contests the fact that venue is proper in NDCA and
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`could have been filed there.
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`a. Relative ease of access to sources of proof
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`In considering the relative ease of access to proof, a court looks to where the parties store
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`documentary evidence, such as documents and physical evidence. Volkswagen II, 545 F.3d at
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`316.
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`Google argues that this factor weighs in favor of transfer for three reasons. First, Google
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`argues that the access to sources of proof factor favors the NDCA because Google researches,
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`designs, develops, and tests the accused functionality in the NDCA. ECF No. 42 at 5. More
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`specifically, Google asserts that “at least 12 key witnesses, founders, technical leads, and
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`engineers . . . still reside in California—nearly all in the San Francisco Bay Area.” Id. at 2.
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`Second, Google asserts that the companies and witnesses that developed prior art products are
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`located in NDCA. Id. at 5. Finally, Google asserts that HDI does not have any ties to the WDTX
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`because HDI’s one party witness is based out of the DFW area. Id. at 5.
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`In response, HDI makes two main counterarguments regarding Google’s access to
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`sources of proof. First, HDI argues that despite having evidence from both parties in DFW and in
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`the NDCA, most of the evidence is likely stored electronically. Id. As a result, a transfer will not
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`make access to sources of proof more convenient for either party. Id. Second, HDI asserts that
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`HDI has located potential third-party witnesses for Google in the WDTX. Specifically, HDI
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`asserts that Google offers many jobs in the WDTX related to the design and management of its
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`Google Cloud infrastructure. Id. at 3.
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`In its reply, Google makes three counterarguments. First, Google argues that HDI’s
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`allegations and infringement contentions only point to functionalities of one product—Actions
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`on Google. ECF No. 49 at 1. The sources of proof for Actions on Google are located in the
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`NDCA. Google asserts that HDI refers to Google Home/Nest Devices in their complaint simply
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`because they run the accused Actions on Google. Id. at 2. Second, Google asserts that HDI failed
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`to identify a single Google employee in the WDTX who possesses key knowledge. Id. Instead,
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`HDI only cited a job listing for Google’s Austin office. Id. Finally, Google argues that they have
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`identified numerous third-party witnesses who are likely to testify at trial. HDI, on the other
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`hand, only identified three groups of third-party witnesses, none of which are likely to be called
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`at trial.
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`The Court finds that the “relative ease of access to sources of proof” slightly weighs
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`towards transfer for the reasons that follow. First, although HDI asserts that most of the evidence
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`is stored electronically, the physical location of electronic documents does not affect the outcome
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`of this factor under current Fifth Circuit precedent. See, e.g., Volkswagen II, 545 F.3d at 316.
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`Thus, because Google is the accused infringer, it is likely that it will have the bulk of the
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`documents that are relevant in this case. See, e.g., In re Genentech, Inc., 566 F.3d 1338, 1345
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`(Fed. Cir. 2009) (“In patent infringement cases, the bulk of the relevant evidence usually comes
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`from the accused infringer. Consequently, the place where the defendant's documents are kept
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`weighs in favor of transfer to that location.”). Therefore, the Court finds that the location of the
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`documents relevant in this case weighs towards transfer.
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`Second, the Court finds that, for party witnesses, NDCA and WDTX are equally
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`convenient. This Court looks at the totality of the circumstances, including but not limited to, the
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`witness’s title and relevant experience, the likelihood that a witness may have relevant
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`information, the number of witnesses, the location of those witnesses, whether the testimony of
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`the witnesses goes to an element of a claim, the amount of public information available to the
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`parties, etc. While Google has identified several employees in NDCA with relevant information,
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`HDI identifies individuals, including the HDI founder, for which WDTX is more convenient.
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`HDI also asserts that the Austin-based Google employees relating to the design and management
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`of its Google Cloud infrastructure are persons with knowledge of relevant facts in the WDTX.
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`Because the parties have identified a few potential witnesses in both NDCA and WDTX, the
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`Court finds that party witnesses are neutral in terms of transfer.
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`Because the location of the documents favors transfer and the party witnesses factor is
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`neutral, the Court finds that the relative ease of access to sources of proof slightly favors transfer
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`to the NDCA.
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`b. Availability of compulsory process to secure the attendance of witnesses
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`In this factor, the Court considers the availability of compulsory process to secure the
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`attendance of witnesses, particularly non-party witnesses whose attendance may need to be
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`secured by a court order. Volkswagen II, 545 F.3d at 316.
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`Google argues that it has identified 12 witnesses with relevant prior art products from
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`companies with headquarters in the NDCA. ECF No. 42 at 6. All of these third-party witnesses
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`are within the subpoena power of the NDCA, but outside of this Court’s trial subpoena power.
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`Id.
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`In its response, HDI argues that Google’s argument fails for at least five reasons. First,
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`HDI asserts that this Court has previously found that prior art witnesses are unlikely to testify.
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`ECF No. 46 at 7. Specifically, the prior art witnesses should be afforded minimal weight, and
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`that they do not weigh in favor of or against transfer. Id. Second, HDI argues that Google has the
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`burden to identify reasons for transfer. Id. Third, if the Court chooses to identify prior art
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`witnesses, HDI argues that they have identified several in Texas, including in the WDTX. Id.
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`Fourth, HDI argues that Google failed to show how prior art witness depositions inconveniences
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`Google. Lastly, HDI points out that the witnesses located in the DFW area are subject to this
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`Court’s subpoena power.
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`In its reply, Google makes one counterargument. ECF No. 49 at 4. Google argues that
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`deposition testimony is not equivalent to live trial testimony. Id. Specifically, Google says that
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`they should not be prejudiced by having to show pieced-together clips of deposition video,
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`instead of being able to call key witnesses to testify live. Id.
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`After considering the parties’ arguments, the Court finds that this factor is neutral for the
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`reason that follows. Because prior art witnesses are very unlikely to testify (and that Google may
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`have cherry-picked them to begin with), the Court gives their location “minimal” weight. East
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`Tex. Boot Co., LLC v. Nike, Inc., No. 2:16-cv-0290-JRG-RSP, 2017 WL 28559065 at *4 (E.D.
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`Tex. Feb. 15, 2017). Accordingly, prior art witnesses do not weigh for or against transfer.
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`Because both Google and HDI based their entire argument on prior art witnesses, all of the other
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`arguments set forth by each party is irrelevant. Therefore, the Court finds that availability of
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`compulsory process to secure the attendance of witnesses is neutral.
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`c. Cost of attendance for willing witnesses
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`The convenience of witnesses is the single most important factor in the transfer analysis.
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`In re Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009). The Court should consider all
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`potential material and relevant witnesses. See Alacritech Inc. v. CenturyLink, Inc., No. 2:16-cv-
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`693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017). “When the distance between an
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`existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles,
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`the factor of inconvenience to witnesses increases in direct relationship to the additional distance
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`to be traveled.” Id. at 1343. The convenience of party witnesses is given little weight. See ADS
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`Sec. L.P. v. Advanced Detection Sec. Servs., Inc., No. A-09-CA-773-LY, 2010 WL 1170976, at
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`*4 (W.D. Tex. Mar. 23, 2010), report and recommendation adopted in A-09-CA-773-LY (ECF
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`No. 20) (Apr. 14, 2010).
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`As a preliminary matter, given typical time limits at trial, the Court does not assume that
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`all of the party and third-party witnesses listed in the 1404(a) briefing will testify at trial. Instead,
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`in addition to the party’s experts, the Court assumes that no more than a few party witnesses—
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`and even fewer third-party witnesses, if any—will testify live at trial. Therefore, long lists of
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`potential party and third-party witnesses do not affect the Court’s analysis for this factor.
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`The Court finds that this factor is neutral because of the following: First, the cost of
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`attendance of party witnesses does not weigh for or against transfer because there appear to be
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`several potential witnesses in both districts. In any case, courts give the convenience of party
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`witnesses little weight. Second, because prior art witnesses are very unlikely to testify, the Court
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`finds that the cost of attendance of prior art witnesses does not weigh for or against transfer.
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`Because neither party nor prior art witnesses weigh for or against transfer, the Court finds that
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`the factor on cost of attendance of willing witnesses is neutral.
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`d. All other practical problems that make trial of a case easy, expeditious
`and inexpensive
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`In this factor, the court considers the practical problems that make a trial easy,
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`expeditious, and inexpensive for the private parties. In re Genentech, Inc., 566 F.3d at 1342.
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`“Judicial economy is served by having the same district court try the cases involving the same
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`patents.” In re Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir. 2009). “To permit a
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`situation in which two cases involving precisely the same issues are simultaneously pending in
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`different District Courts leads to the wastefulness of time, energy, and money that § 1404(a) was
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`designed to prevent.” Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26 (1960).
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`Google argues that this point is neutral. ECF No. 42 at 8. Conversely, HDI argues that
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`this point weighs in their favor because the Court consolidated this case with Amazon.
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`Specifically, HDI points out that HDI has asserted the same claims against Amazon and Google,
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`making it highly likely that issues will overlap.
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`The Court finds that this factor weighs towards denying the motion to transfer to the
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`NDCA. The Court has consolidated the claims against both Amazon and Google. The
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`consolidation of two cases makes the best use of HDI resources. HDI is now able to file joint
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`motions and all other things that come with having a consolidated patent case. In addition,
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`WDTX is simply a less congested venue than the NDCA. See Uniloc 2017 LLC v. Apple, 6-19-
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`cv-00532 (W.D. Tex. June 22, 2020), ECF No. 72 at 29. Thus, the Court finds that the other
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`practical problems weigh in favor of denying transfer to the NDCA.
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`e. Administrative difficulties flowing from court congestion
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`The relevant inquiry under this factor is actually “[t]he speed with which a case can come
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`to trial and be resolved[.]” In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009). In its
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`motion, Google admits that this Court’s time-to-trial is currently 25% faster than the NDCA.
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`ECF No. 42 at 8. Despite their admission, Google argues that this factor should be given the least
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`weight because the Federal Circuit has held that time to trial is the most speculative factor. Id. In
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`its response, HDI agrees that the time-to-trial favors HDI and that the factor should disfavor
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`transfer to the NDCA. ECF No. 46 at 10.
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`Because the time-to-trial statistics in this Court is currently 25% faster than the NDCA,
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`the Court finds that this factor weighs against transfer.
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`f. Local interest in having localized interests decided at home
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`In its motion, Google argues that they have a stronger local interest in this litigation than
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`the WDTX because Google developed the accused products in the NDCA. ECF No. 42 at 8. In
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`its response, HDI argues that Google’s presence in NDCA favors this factor only slightly.
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`Specifically, HDI argues that Google sells and ships the accused products throughout the
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`country. Thus, the effect of their operation is felt everywhere.
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`In its reply, Google contends that the local interest factor weighs in favor of transfer to a
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`venue where there are significant connections between the particular venue and the events that
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`gave rise to the suit. ECF No. 49 at 4. Thus, because the NDCA is where Google researched,
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`designed, and developed the accused functionality, the local interest factor favors transfer to the
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`NDCA. Id. at 5.
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`The Court finds that this factor slightly weighs in favor of transfer. Google is a large
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`employer in both the NDCA and the WDTX, so both districts have a significant interest in this
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`case. Google’s contribution to this factor is neutral. While Google does have a large number of
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`employees in both districts, Google researched, designed, and developed the accused
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`functionality in the NDCA. Accordingly, given that Google’s presence in both districts is neutral
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`in terms of transfer, but Google’s development of the accused functionality weighs in favor of
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`transfer, the Court finds that the local interest factor slightly favors transfer to the NDCA.
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`g. Familiarity of the forum with the law that will govern the case
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`Both parties agree that this factor is neutral. ECF No. 42 at 8 (Google), ECF No. 46 at 10
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`(HDI). The Court also agrees.
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`h. Avoidance of unnecessary problems of conflict of laws or in the
`application of foreign law
`Both parties agree that this factor is neutral. ECF No. 42 at 8 (Google), ECF No. 45 at 10
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`(HDI). The Court also agrees.
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`i. Conclusion
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`Having found that (1) access to proof and local interests slightly weigh in favor of
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`transfer; (2) court congestion and other practical problems weigh against transfer; and (3) all
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`other factors being neutral, the Court finds that Google has not met its “heavy burden” to
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`demonstrate that NDCA is “clearly more convenient.” Volkswagen II, 545 F.3d at 314 n.10, 315;
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`QR Spex, 507 F. Supp. 2d at 664.
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`IV. Discussion regarding alternative motion to transfer to Austin
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`Google’s alternative motion is to transfer this case to the Austin Division. Google argues
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`that the Austin Division is clearly more convenient than the Waco Division because Google has
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`an office and employees in Austin. ECF No. 42 at 9. Also, Google argues that the intra-district to
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`Austin will save judicial resources because of the consolidation with the Amazon case. Id. at 9.
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`In its response, HDI argues that Waco is more convenient for HDI because their
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`headquarters are located in the DFW area. ECF No. 46 at 6. Also, HDI argues, for those traveling
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`from the NDCA, that Waco is equally as accessible as Austin. Id. at 9. Specifically, HDI argues
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`that flying into Dallas and driving to Waco takes the same amount of time as flying into Austin
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`because Austin flights usually make a connection in Dallas. Id.
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`In its reply, Google makes two counterarguments. First, Google argues that it is an error
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`to consider proximity for a measure of convenience when none of the HDI witnesses are in the
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`WDTX. ECF No. 49 at 5. Second, Google argues that HDI failed to present any facts to support
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`their contention that travel to Waco from the NDCA is not significantly less convenient
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`compared to travel to Austin. Id.
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`The Court agrees that the Austin Division is more convenient than the Waco Division for
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`the reasons Google has described. In short, whatever facts weigh against transfer to the NDCA
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`from the WDTX also weigh in favor of transferring to Austin from Waco. Therefore, the Court
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`finds that Google has met its “heavy burden” of demonstrating that Austin is “clearly more
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`convenient.”
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`V.
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`Conclusion
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`It is therefore ORDERED that Google’s motion for transfer venue to the Northern
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`District of California is DENIED. It is further ORDERED that Google’s alternative motion is
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`GRANTED and that the above-styled case be TRANSFERRED to the Austin Division but
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`remain on the docket of United States District Judge Alan D Albright and according to the
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`scheduling order that was entered in this case on November 1, 2019.
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`SIGNED this 24th day of June, 2020.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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`12
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