Case 2:18-cv-00504-JRG-RSP Document 308 Filed 06/08/20 Page 1 of 12 PageID #: 10829
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`UNILOC 2017 LLC,
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` Plaintiff,
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`v.
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`GOOGLE LLC,
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` Defendant.
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`Case No. 2:18-cv-00504-JRG-RSP
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`MEMORANDUM ORDER
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`Before the Court is the Motion to Transfer Venue to the Northern District of California
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`under 28 U.S.C. § 1404 (“Motion”), filed by Defendant Google LLC.1 Dkt. No. 94. After
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`consideration, the Court GRANTS Google’s Motion. It is therefore ORDERED that the case be
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`transferred to the Northern District of California.
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`I.
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`BACKGROUND
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`Plaintiff Uniloc 2017 LLC (“Uniloc”) is a Delaware limited liability company with offices
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`in Tyler, Texas, and Newport Beach, California. Dkt. No. 1 at 1. Defendant Google LLC
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`(“Google”) is a California corporation with its principal place of business in the Northern District
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`of California. On November 17, 2018, Uniloc filed multiple patent infringement suits against
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`Google in this Court.2
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`A few months later, Google filed a motion pursuant to 28 U.S.C. § 1404(a) to transfer the
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`cases to the Northern District of California.3 Google argues that its financial witnesses and key
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`Google employees who worked on the accused functionality are located in the Northern District,
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`1 A similar motion was filed in all the Uniloc v. Google cases, Case Nos. 2:18-cv-491–-493, -496–-497, -499, -501–-
`504, -548, -550–-553. Although some minor facts differ, the result is the same in every case.
`2 Uniloc filed some of the suits on December 30, 2018. See Case Nos. 2:18-cv-548, -550–-553.
`3 Google filed a renewed motion to transfer, which is the present motion, after some targeted discovery.
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`with the majority of the other witnesses also residing in California. Google further argues that the
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`majority of the evidence is located in the Northern District or is accessible through the cloud.
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`Uniloc opposes transfer, contending that this District is the proper venue. Uniloc argues
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`that both it and Google have extensive ties to this District and Texas in general. It also argues that
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`this District would be more convenient for non-party witnesses, especially willing witnesses.
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`Finally, Uniloc argues that a denial of transfer could prevent a waste of judicial resources by
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`avoiding the need for the Northern District to restart a series of cases nearing trial.4
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`II.
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`LEGAL STANDARD
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`“For the convenience of parties and witnesses, in the interest of justice, a district court may
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`transfer any civil action to any other district or division where it might have been brought . . . .”
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`28 U.S.C. § 1404(a); see also In re Toyota Motor Corp., 747 F.3d 1338, 1339 (Fed. Cir. 2014). “A
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`motion to transfer venue should be granted upon a showing that the transferee venue ‘is clearly
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`more convenient’ than the venue chosen by the plaintiff.” In re Genentech, Inc., 566 F.3d 1338,
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`1342 (quoting In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc)
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`(“Volkswagen II”)); see also In re Nintendo Co., Ltd., 589 F.3d 1194, 1197 (Fed. Cir. 2009); In re
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`TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Circ. 2008). The first inquiry when analyzing a
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`case’s eligibility for § 1404(a) transfer is “whether the judicial district to which transfer is sought
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`would have been a district in which the claim could have been filed.” In re Volkswagen AG, 371
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`F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”).
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`Once that threshold is met, courts analyze a number of private and public interest factors.
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`Id. (citations omitted). The private factors include: “(1) the relative ease of access to sources of
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`4 Google’s motions to transfer were filed timely but their consideration was delayed by venue discovery and
`developments in related litigation. The Court notes that, despite an invitation to do so (see Dkt. No. 289), Uniloc did
`not brief the effect of In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020), reh’g denied, No. 19-00126 (Fed. Cir. May
`15, 2020).
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`proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost
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`of attendance for willing witnesses; and (4) all other practical problems that make trial of a case
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`easy, expeditious and inexpensive.” Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6
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`(1981)). The public factors include: “(1) the administrative difficulties flowing from court
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`congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity
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`of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems
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`of conflict of laws of the application of foreign law.” Id.
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`The plaintiff’s choice of venue is not a factor in this analysis. Volkswagen II, 545 F.3d at
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`314–15. Rather, the plaintiff’s choice of venue contributes to the defendant’s burden of proving
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`that the transferee venue is “clearly more convenient” than the transferor venue. Id. at 315.
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`Furthermore, though the factors apply to most transfer cases, “they are not necessarily exhaustive
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`or exclusive” and no single factor is dispositive. Id. (citation omitted).
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`III. ANALYSIS
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`a. Northern District of California is a Proper Venue
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`The first inquiry when analyzing a case’s eligibility for § 1404(a) transfer is “whether the
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`judicial district to which transfer is sought would have been a district in which the claim could
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`have been filed.” Volkswagen I, 371 F.3d at 203 (citation omitted). The parties do not dispute that
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`this action could have been brought in the Northern District of California. The Court therefore
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`assumes that venue would be proper in the Northern District.
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`b. Private Interest Factors
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`i. Cost of Attendance for Willing Witnesses
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`“The convenience of the witnesses is probably the single most important factor in a transfer
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`analysis.” Genentech, 566 F.3d at 1343 (citation omitted). Under the Fifth Circuit’s 100-mile rule,
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`“[w]hen the distance between an existing venue for trial of a matter and a proposed venue under
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`§1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct
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`relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d at 204–05.
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`Google argues that most non-party witnesses likely to be called to testify in this case reside
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`or work in or near the Northern District, including many relevant current and former Fortress
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`employees.5 Dkt. No. 94 at 10 (citing id. at Background § III) (identifying over a dozen potential
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`witnesses in California). On the other hand, Google states that it is not aware of any non-party
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`witnesses who reside or work in the Eastern District. Id. (citing Toyota, 747 F.3d at 1340; Dkt. No.
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`94-15 at 56:11–57:12). Google also argues that the Northern District is more convenient for party
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`witnesses as most of the relevant Google and Uniloc witnesses reside in or near the Northern
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`District. Id. (citing id. at Background §§ I–II; Dkt. No. 94-10 at 15–19).
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`Uniloc counters that “Google fails to identify any willing nonparty witnesses” while Uniloc
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`can identify two non-party witnesses who are willing to travel to this District. Dkt. No. 142 at 11
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`(citing Palmer Decl.; Burdick Decl.).6 Further, Uniloc argues its witnesses can provide the
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`information requested from many of the identified non-party witnesses, making their appearance
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`unnecessary. Uniloc also calls into question Google’s assertion that the location of Google’s party
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`witnesses favors transfer. Finally, Uniloc concedes that while two of its witnesses are based in
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`California, another is based in New Jersey, which is closer to this District than California. Uniloc
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`concludes that, taken as a whole, the convenience of its witnesses does not support transfer as the
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`Uniloc witnesses prefer to testify in this District, Uniloc has an office in this District, and “lodging
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`5 Fortress Investment Group is a Northern California entity that incorporated and formed both Uniloc and Uniloc’s
`parent, CF Uniloc Holdings LLC, funded Uniloc’s patent assertion strategies, and appointed its own employees as
`officers and board members of Uniloc and CF Uniloc, many of whom reside and work in the Northern District. Id. at
`6–8 (citations omitted). The parties sharply disagree over Fortress’ relevance.
`6 Uniloc only attached exhibits to its Motion briefing in Case No. 2:18-cv-00548. See, e.g., Dkt. No. 114 in the -548
`case. However, it stated that the exhibits are identical in each case. See Dkt. No. 142 at 1 n.1. Therefore, the Court
`relies on the exhibits attached in the -548 case but cites to the record in this case as if the exhibits had been attached.
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`and meals are likely to be significantly less expensive in Marshall than in San Francisco.” Id. at
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`12–13 (citing Dkt. No. 142-1; Dkt. No. 142-9 at 59:5–7; Turner Decl. at ¶ 3; Pedersen Decl. at ¶
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`2).
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`Google replies that Uniloc does not dispute that the Northern District is more convenient
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`for the non-party witnesses identified by Google as well as the vast majority of Google and Uniloc
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`witnesses, who are residents of California. It further contends that Uniloc’s assertion that it can
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`provide information requested from non-party witnesses is contradicted by Uniloc’s own
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`representations throughout venue discovery. Dkt. No. 148 at 1 (citing Dkt. No. 148-2 at 2; Dkt.
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`No. 148-3 at 3; Dkt. No. 94-8 at 118:19–119:14; Dkt. No. 148-4; Dkt. No. 106 at 2–3). Google
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`also argues that while Uniloc submitted declarations stating that two non-party witnesses are
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`willing to travel to this District, it did not address the willingness of the other non-party witnesses
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`identified by Google, many of whom reside in the Northern District. Id. (identifying eight other
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`potential non-party witnesses). Google also contends that the non-party witnesses identified by
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`Uniloc either do not reside in this District, have testimony on irrelevant topics, or both. Finally,
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`Google argues that Uniloc has shown only minimal ties to this District, especially as it relates to
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`Uniloc’s witnesses.
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`Google recently filed a supplement confirming its previous assertion that its prior
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`identification of relevant witnesses was accurate. It states “that 13 of the 14 Google witnesses who
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`were deposed [earlier] were located in the Northern District of California; and at least 25 of the 27
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`Google witnesses who will be deposed in these cases . . . are similarly located in the Northern
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`District of California.” Dkt. No. 286 at 2. It goes on to state that the other two Google witnesses
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`as well as two potential Uniloc witnesses are on the West Coast while none are in Texas. Google
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`then argues that the COVID-19 pandemic increases the importance of witness location and
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`convenience, stating “[t]he logic and purpose of the 100-mile rule has never been more sound and
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`more important than it is today” and that “the 100-mile rule is not simply one of convenience, it is
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`the difference between those witnesses being able to appear for trial or not.” Id. at 4.
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`Uniloc responds that Google’s supplement should be given no weight since it is “merely a
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`battle of numbers.” Dkt. No. 301 at 1 (citing Frederick v. Advanced Fin. Sols., Inc., 558 F. Supp.
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`2d 699, 704 (E.D. Tex. 2007)). Uniloc argues that the lack of specificity in Google’s statement
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`makes it impossible to weigh the convenience of any specific witness in any specific case. For
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`example, Uniloc argues that just because these witnesses are confirmed deponents does not prove
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`they will appear at trial. Further, it argues that, “[i]n a transfer motion, the convenience of expert
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`witnesses means little, if anything to the transfer analysis” since parties can pick their experts,
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`especially a party the size of Google. Id. at 2 (citing Fletcher v. S. Pac. Transp. Co., 648 F. Supp.
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`1400, 1403–04 (E.D. Tex. 1986)) (citations omitted). It also represents that the two people cited
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`in Google’s supplement as potential Uniloc witnesses will not be deposed in this case. Finally,
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`Uniloc argues that the COVID-19 pandemic has not made the Northern District more convenient
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`for a host of reasons.
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`ii. Relative Ease of Access to Sources of Proof
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`When considering the relative ease of access to sources of proof, a court looks to where
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`documentary evidence and physical evidence is stored. See Volkswagen II, 545 F.3d at 316.
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`Relevant evidence in patent cases usually comes from the accused infringer and, consequently, the
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`place where the defendant’s documents are kept ordinarily does weigh in favor of transfer to that
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`location. See Genentech, 566 F.3d at 1345 (citation omitted).
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`Google argues that “[a] majority of the evidence, including evidence from Uniloc 2017,
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`related Uniloc entities, Fortress, and other third-parties, may come from or favor the Northern
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`District, where many of these witnesses reside or spend time in California and are likely to have
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`relevant documents.” Dkt. No. 94 at 11–12 (citing id. at Background §§ I–III). Furthermore,
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`Google argues any evidence from Uniloc in this District is remotely available from anywhere. Id.
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`(citing id. at Background § II (“Mr. Etchegoyen testified that his emails and other Uniloc
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`documents . . . are stored online in the cloud.”)).
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`Uniloc counters that when considering this factor, a court looks to where documentary
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`evidence is stored regardless of its accessibility. Dkt. No. 142 at 7 (citing Volkswagen II, 545 F.3d
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`at 316). Uniloc argues that Google’s documents, which are hosted on Google’s data servers, are
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`located closer to this District than the Northern District because Google’s servers are closer even
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`though it admits neither Texas nor California contained a Google data center when this case was
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`filed. Id. (citing Dkt. No. 142-1; Dkt. No. 142-7 at 4). Uniloc also admits that its documents are
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`accessible anywhere but argues that some of its documents are physically located in this District.
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`Finally, Uniloc argues that Google only speculates as to the existence and location of non-party
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`documents, which is not enough to satisfy Google’s burden of proof. Furthermore, it argues that
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`most of the so-called non-party information identified by Google is, in fact, party information since
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`Uniloc has access to the requested information.
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`Google replies that Uniloc does not deny that many sources of proof are in California or
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`the Northern District. Google further contends that even if some documents are in this District,
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`they are on the cloud and thus, conveniently accessed anywhere with an Internet connection.
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`Regardless, Google argues the documents stored in this District are of little relevance to this case.
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`Finally, it states that Uniloc’s claim that it can provide the requested non-party information is
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`baseless and the requested information, like the non-parties themselves, is likely in California or
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`even the Northern District.
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`iii. Availability of Compulsory Process to Secure the Attendance of
`Witnesses
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`A court may compel a non-party witness to attend depositions or trial within 100 miles of
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`where the person resides, is employed, or regularly transacts business in person. FED. R. CIV. P.
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`45(c)(1)(A). “Transfer is favored when a transferee district has absolute subpoena power over a
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`greater number of non-party witnesses” than the transferor district. Adaptix, Inc. v. HTC Corp.,
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`937 F. Supp. 2d 867, 874 (E.D. Tex. 2013). “The fact that the transferee venue is a venue with
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`usable subpoena power . . . weighs in favor of transfer, and not only slightly.” Genentech, 566 F.3d
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`at 1345.
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`Google argues that many relevant non-party witnesses are in the Northern District or in
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`parts of California where the Northern District has subpoena power, but this District does not. Dkt.
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`No. 94 at 11 (citing id. at Background § III & Argument § II.A). Google further states it is not
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`aware of any relevant non-party witnesses who reside or work in this District.
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`Uniloc responds that Google does not properly identify non-party witnesses under this
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`factor. Uniloc divides the identified non-party witnesses into two groups. The first group, Uniloc
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`argues, contains witnesses who are either part of Uniloc or have information Uniloc could provide
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`itself. Uniloc argues the second group contains witnesses who were cherrypicked by Google
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`because they are in the Northern District but with no real chance of being called at trial, such as
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`prior art inventors. Along these lines, Uniloc argues that “[t]o the extent any weight is given to the
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`individuals in Background § III of Google’s motion, similar weight should be given to the
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`individuals in Background § F of this response, who [are mostly in Texas and] are as likely to
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`testify as the ‘nonparty’ witnesses Google identifies.” Dkt. No. 142 at 10–11.
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`Google replies that Uniloc does not dispute that the Northern District has absolute
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`subpoena power over the non-party witnesses identified by Google. It then argues that Uniloc’s
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`assertion that Uniloc has information possessed by the identified non-party witnesses is
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`contradicted by Uniloc’s own representations throughout venue discovery. Google also identifies
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`multiple witnesses who it argues reside in the Northern District and contain relevant information
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`not likely to be available to Uniloc. Since it is unclear if they are willing witnesses, Google argues
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`it is better to be in the Northern District, which has subpoena power over them. Google also argues
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`that it regularly calls prior art inventors at trial. Dkt. No. 148 at 2 (citations omitted) (listing cases
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`where Google has called such witnesses at trial).
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`iv. All Other Practical Problems that Make Trial of a Case Easy,
`Expeditious and Inexpensive
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`Google argues there are no practical problems with transferring this case because this case
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`was still in the early stage of litigation when Google’s initial motion to transfer was filed. The fact
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`that multiple cases were filed should not sway this decision as this case is unrelated to the other
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`cases and therefore, the relevant witnesses and documents will likely also be different.
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`Uniloc responds that practical problems based on judicial economy exist. It argues the
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`Court and parties have invested time into this case and that a transfer will create inefficiency by
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`requiring a new court to familiarize itself with these issues. It also argues that even if this factor is
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`neutral, that would weigh against transfer since Google has the burden of proof
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`c. Public Interest Factors
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`i. Administrative Difficulties Flowing from Court Congestion
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`The speed with which a case can come to trial and be resolved is a factor in the transfer
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`analysis. A proposed transferee court’s “less congested docket” and “[ability] to resolve this
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`dispute more quickly” should be considered. In re Hoffman-La Roche Inc., 587 F.3d 1333, 1336
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`(Fed. Cir. 2009). In situations where “several relevant factors weigh in favor of transfer and others
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`are neutral, then the speed of the transferee district court should not alone outweigh all of those
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`other factors.” Genentech, 566 F.3d at 1347.
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`Google argues this factor is neutral since the time to disposition is about the same for both
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`districts. Dkt. No. 94 at 14 (citing Dkt. Nos. 94-46–94-47).
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`Uniloc counters that this District’s time to trial is shorter than the Northern District’s time
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`to trial, making the administrative difficulties flowing from court congestion weigh against
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`transfer. Dkt. No. 142 at 14 (citation omitted).
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`ii. Local Interest in Having Localized Interests Decided at Home
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`This factor considers the interest of the locality of each venue in having the case resolved
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`there. See Volkswagen I, 371 F.3d at 205–06. This consideration is based on the principle that
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`“[j]ury duty is a burden that ought not to be imposed upon the people of a community [that] has
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`no relation to the litigation.” Id.
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`Google argues that its activities related to the accused functionality are primarily centered
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`in the Northern District. Dkt. No. 94 at 13 (citing id. at Background § I & Argument § II.A). Since
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`Uniloc’s allegations call into question “the work and reputation” of engineers responsible for these
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`products as well as Google’s reputation, the Northern District’s “interest in this case remains
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`strong.” Id. (quoting Hoffman-La Roche, 587 F.3d at 1336) (citations omitted)). Further, multiple
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`non-parties, such as prior art inventors as well as Fortress, call the Northern District home. Id.
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`(citing id. at Background § III; Dkt. No. 94-34 at 67:9–69:3; Dkt. Nos. 94-37–94-44). Google
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`contrasts this with Uniloc, which Google contends does not transact business under Texas law and
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`is not registered as a business in Texas. Id. at 13–14 (citing Dkt. No. 94-2 at ¶ 2). Finally, Google
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`argues neither it nor Uniloc has a connection to this District that could not also be drawn to other
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`districts, such as Google making its services and products available nationally. Id. at 14 (citing
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`Volkswagen II, 545 F.3d at 318; Nintendo, 589 F.3d at 1198; TS Tech, 551 F.3d at 1321).
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`Uniloc responds that it and its predecessor entities have been in this District for more than
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`a decade while it has no office or employees in the Northern District. It goes on to contend that its
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`general ties to California do not give the Northern District an interest in this case and that this
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`District has at least as much interest in the outcome of this case as the Northern District. It further
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`argues that Google’s activities related to the accused product are not primarily centered in the
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`Northern District but instead are provided from Google’s data centers, which are closer to this
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`District than the Northern District. Finally, Uniloc distinguishes Volkswagen II by arguing that the
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`Dallas Division in that case had an interest because the accident that gave rise to the case occurred
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`there, affecting the residents of that division. Here, however, Google’s infringing activity that gives
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`rise to this suit occurs in this District and affects, directly and indirectly, the residents of this
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`District.
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`iii. Familiarity of the Forum with the Law that Will Govern the Case
`and Avoidance of Unnecessary Problems of Conflict of Laws or in
`the Application of Foreign Law
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`The parties agree these factors are neutral as both districts are familiar with and can apply
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`the same federal patent laws to this patent infringement case. See, e.g., Dkt. No. 94 at 14 (citing
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`TS Tech, 551 F.3d at 1320).
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`IV. CONCLUSION
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`The Court has considered all the arguments made by both sides, laying out the most
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`persuasive ones in this Order. Neither party seems to truly contend that sources of proof cannot be
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`easily accessed from either venue. The few documents that are physically present in either district
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`have little relevance. However, keeping the Fifth Circuit’s 100-mile rule in mind, Google has
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`shown that far more witnesses in this case, both party and non-party, are in the Northern District
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`or close to it. This is not just a matter of numbers but also of substance as well. Google’s
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`supplement also shows that these identified witnesses are more likely to attend trial, making the
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`need to consider their convenience more important, even without regard to the difficulties posed
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`by the pandemic. Regardless of whether the non-party witnesses would be unwilling to attend trial,
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`which is unclear for most of them, Google has made a credible showing that the Northern District
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`would have subpoena power over many of the identified witnesses pursuant to Rule 45(c). The
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`fact that this decision comes at a relatively late stage provides an unusual degree of certainty about
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`the trial witnesses, in place of the speculation normally necessary. The late stage of this case does
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`itself present some cause for concern. Yet, Google filed this motion in a timely manner early in
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`the case and the delay was due to venue discovery and developments in other related cases, which
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`cannot be attributed to Google.
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`After consideration, and on the unusual record before it, the Court finds that the Northern
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`District of California is clearly more convenient than this District. It therefore GRANTS Google’s
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`Motion to Transfer and ORDERS that this case be transferred to the Northern District of
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`California.
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`____________________________________
`ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
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`SIGNED this 3rd day of January, 2012.
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`SIGNED this 8th day of June, 2020.
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