Case 6:21-cv-00916-ADA Document 116 Filed 12/08/22 Page 1 of 6
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`RFCYBER CORP.,
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`v.
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`APPLE INC.,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:21-cv-00916-ADA
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`JURY TRIAL DEMANDED
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`NOTICE OF SUPPLEMENTAL AUTHORITY
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`Defendant.
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`RFCYBER CORP.,
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`v.
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`APPLE INC.,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`§
`Case No. 6:21-cv-00916-ADA
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`JURY TRIAL DEMANDED
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`NOTICE OF SUPPLEMENTAL AUTHORITY
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`Defendant.
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`Case 6:21-cv-00916-ADA Document 116 Filed 12/08/22 Page 2 of 6
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`Plaintiff RFCyber Corp. (“RFCyber”) respectfully submits this Notice of Supplemental
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`Authority to the Court regarding Defendant Apple Inc.’s (“Apple”) Motion for Intra-District
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`Transfer to the Austin Division. Dkt. 93.
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`On October 31, 2022, the United States Court of Appeals for the Fifth Circuit denied a
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`Petition seeking a Writ of Mandamus ordering the United States District Court for the Northern
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`District of Texas to transfer a case to the Western District of Texas. In re Planned Parenthood
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`Fed’n of Am., Inc., 52 F.4th 625(5th Cir. 2022). The Fifth Circuit held that Petitioners failed to
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`show a clear and undisputable right to the writ where the record “falls well short of establishing
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`that the destination venue is clearly more convenient than Respondents’ chosen venue.” Id. at 630.
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`Specifically, the Fifth Circuit found that the private and public interest factors did not
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`compel transfer:
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` As to the location of evidence, the Court held: “[t]he location of evidence bears
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`much more strongly on the transfer analysis when . . . the evidence is physical in
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`nature.” Id. Since “the vast majority of the evidence was electronic, and therefore
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`equally accessible in either forum,” and “[t]here was some remaining documentary
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`evidence in both the Northern District and the Western District,” the factor weighed
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`against transfer. Id. Similarly, in this case, the vast majority of Apple’s evidence is
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`electronic, and Apple has identified no physical evidence whatsoever located in
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`Austin. Dkt. 93 at 10; Dkt. 102 at 11-12. Conversely, RFCyber’s documents are
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`located in Waco. Dkt. 102 at 11-12.
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` “As to the availability of compulsory process, the district court found that this factor
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`did not weigh in favor of transfer because the Petitioners failed to identify any
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`witnesses who would be unwilling to testify.” Planned Parenthood, 52 F.4th at
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`Case 6:21-cv-00916-ADA Document 116 Filed 12/08/22 Page 3 of 6
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`630. (emphasis added). Here, Apple admits that it has identified no witnesses who
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`are unwilling to testify. Dkt. 93 at 11.
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` “As to the cost of attendance for willing witnesses, the relevant witnesses reside
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`across the state and across the country. . . . In light of this fact, the parties spar over
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`whether it would be cheaper for the witnesses to travel to Austin or Amarillo. The
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`district court acknowledged these arguments, finding that there are more flights into
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`Austin, but that other[] costs in Amarillo are less—such as hotels and restaurants.”
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`Planned Parenthood, 52 F.4th at 631. Here, the parties proposed competing
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`concerns as to witness attendance, but it was undisputed that many of Apple’s
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`witnesses would have to travel regardless of the ultimate venue, and that RFCyber
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`had an office it could utilize in Waco. Dkt. 102 at 12-13.
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` As to local interests, “the defendants and the witnesses are located across the state
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`and across the country. We agree that this is not the sort of localized case where the
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`citizens of Austin have a greater ‘stake’ in the litigation than the citizens of
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`Amarillo.” Planned Parenthood, 52 F.4th at 632. Here, Apple is a national
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`company with offices across the country. While it has a large office in Austin (the
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`importance of which it sought to minimize in its withdrawn Motion for Inter-
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`District Transfer), this patent infringement case is not a “localized case where the
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`citizens of Austin have a greater ‘stake’ in the litigation than” those of Waco. Id.
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` As to court congestion, “[t]o the extent docket efficiency can be reliably estimated,
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`the district court is better placed to do so than this court. Moreover, this case appears
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`to be timely proceeding to trial before the Amarillo Division. That fact further
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`counsels against transfer.” Id. at 631. Similarly, the case is proceeding in a timely
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`Case 6:21-cv-00916-ADA Document 116 Filed 12/08/22 Page 4 of 6
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`fashion in this Division, with claim construction already completed and fact
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`discovery scheduled to close on January 17, 2023. Dkt. 29 at 3. Apple merely
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`speculates otherwise. Dkt. 105 at 4.
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`Finally, the Fifth Circuit noted that “Petitioners’ failure to seek relief until late in the
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`litigation weighed against transfer.” Planned Parenthood, 52 F.4th at 631. In particular, the
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`Petitioners waited until seven months after the case was unsealed, and after they had lost a motion
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`to dismiss and for reconsideration. Id. Similarly here, Apple waited to file its motion until eight
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`months after the beginning of claim construction proceedings, and months after it filed its doomed
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`motion to transfer to the Northern District of California. Apple’s untimeliness further weighs
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`against its motion to transfer. Dkt. 102 at 6-10.
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`Dated: December 8, 2022
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`Respectfully submitted,
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` /s/ Vincent J. Rubino, III
`Raymond W. Mort, III
`Texas State Bar No. 00791308
`Email: raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`Austin, Texas 78701
`Tel/Fax: 512-865-7950
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`OF COUNSEL:
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`Alfred R. Fabricant (Admitted Pro Hac Vice)
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos (Admitted Pro Hac Vice)
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III (Admitted Pro Hac Vice)
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Richard M. Cowell (Admitted Pro Hac Vice)
`NY Bar No. 4617759
`Email: rcowell@fabricantllp.com
`FABRICANT LLP
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`Case 6:21-cv-00916-ADA Document 116 Filed 12/08/22 Page 5 of 6
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`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`ATTORNEYS FOR PLAINTIFF
`RFCYBER CORP.
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`Case 6:21-cv-00916-ADA Document 116 Filed 12/08/22 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 8, 2022, I electronically filed the foregoing with the
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`Clerk of Court using the CM/ECF system, which will send notification of such filing via electronic
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`mail to all counsel of record. Any other counsel of record will be served by first class U.S. mail.
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` /s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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