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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MITEK SYSTEMS, INC.,
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`Plaintiff,
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`v.
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`UNITED SERVICES AUTOMOBILE
`ASSOCIATION,
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`Defendant.
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`Case No. 19-cv-07223-EMC
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`
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`ORDER GRANTING DEFENDANT’S
`MOTION TO TRANSFER; GRANTING
`DEFENDANT’S ADMINISTRATIVE
`MOTION FOR LEAVE TO FILE
`RESPONSE; AND OVERRULING
`PLAINTIFF’S OBJECTION TO REPLY
`EVIDENCE
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`Docket Nos. 19, 28, 30
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`
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`
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`The instant case is a patent declaratory judgment action. Plaintiff Mitek Systems, Inc.
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`seeks a declaration that it does not infringe four patents (the ‘779, ‘517, ‘090, and ‘571 patents)
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`held by Defendant United States Automobile Association (“USAA”). Currently pending before
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`the Court is USAA’s motion to dismiss for lack of subject matter jurisdiction – more specifically,
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`on the basis that there is no case or controversy between the parties. In the alternative, USAA asks
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`the Court to transfer the instant case to the Eastern District of Texas, where USAA previously
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`filed a patent infringement lawsuit against Wells Fargo, one of Mitek’s main customers. That
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`lawsuit (Case No. C-18-0245 JRG (E.D. Tex.)) involved the same patents at issue here. In
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`November 2019, a jury verdict issued in the Texas case in USAA’s favor.
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`Having considered the parties’ briefs and accompanying submissions, the Court finds the
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`matter suitable for disposition without oral argument. The Court GRANTS USAA’s motion to
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`transfer. Because the Court is transferring the case, it does not rule on USAA’s motion to dismiss
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`for lack of subject matter jurisdiction. USAA can renew that motion before the Texas court.
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`Northern District of California
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`United States District Court
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 2 of 10 PageID #: 1087
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`I.
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`FACTUAL & PROCEDURAL BACKGROUND
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`The allegations in the complaint and the parties’ evidence submitted in conjunction with
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`the pending motion reflect as follows.1
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`“USAA is a reciprocal inter-insurance exchange” based in San Antonio, Texas. Compl. ¶
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`4. It owns four patents – namely, the ‘779, ‘517, ‘090, and ‘571 patents. See Compl. ¶ 1. The
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`patents are all related to mobile check deposit technology.
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`Mitek is a software company based in San Diego, California. See Carnecchia Decl. ¶ 2;
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`see also Compl. ¶ 3. It has a product called Mobile Deposit® which provides a “mobile remote
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`deposit capture solution for retail financial institutions and brokerages.” Carnecchia Decl. ¶ 2.
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`“More than 6,400 financial institutions have licensed [Mobile Deposit], including 99 of the top
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`100 banks in the United States.” Carnecchia Decl. ¶ 2.
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`Mitek also has a product called MiSnapTM. MiSnap concerns automatic image capture
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`technology. See Carnecchia Decl. ¶ 3; see also Compl. ¶¶ 3, 28 (alleging that MiSnap is “a remote
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`image capture SDK [software development kit]” that enables “instant capture of quality images
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`with a mobile or desktop device”). “Mitek partners with . . . financial service companies to help
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`successfully integrate MiSnapTM into various financial institutions’ mobile check deposit
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`applications.” Carnecchia Decl. ¶ 7. Mitek has licensed its MiSnap technology to various
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`financial institutions, including but not limited to including Wells Fargo. See Carnecchia Decl. ¶
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`8. The MiSnap technology is at issue in the instant case.
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`Starting in early 2017, USAA began to contact financial institutions regarding their mobile
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`check deposit technology, indicating that their use of the technology violated USAA’s patent
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`rights. See Compl. ¶ 8. USAA did so through a law firm based in Burlingame, California (named
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`Epicenter Law, PC). USAA “sent over 1,000 patent licensing demand letters to financial
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`institutions across the country, most of which are Mitek customers.” Compl. ¶ 8. According to
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`Mitek, after USAA sent out its patent licensing demand letters, Mitek received demands for
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`1 Mitek has objected to evidence that USAA submitted in conjunction with its reply brief. The
`Court grants USAA’s motion to file a response to Mitek’s objection. The Court overrules Mitek’s
`objection, as discussed below.
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`2
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`Northern District of California
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`United States District Court
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 3 of 10 PageID #: 1088
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`indemnification from its customers. See Compl. ¶ 13.
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`One of Mitek’s customers that received a demand letter from USAA was Wells Fargo. See
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`Compl. ¶ 9. Furthermore, in June 2018, USAA took additional action against Wells Fargo,
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`initiating a patent infringement suit against it in the Eastern District of Texas.2 In the complaint it
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`filed in Texas, USAA referenced Mitek and its MiSnap technology. For example, USSA alleged
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`that:
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`• “[t]he claims of the patents in suit recite the essential elements of what the industry
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`term[s] auto-capture”;
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`• “[i]n 2014, Mitek published an article entitled ‘Mitek MiSnap™ Mobile Auto
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`Capture Improves Mobile Deposit® User Experience at Ten Leading Financial
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`Institutions’”; and
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`• Mitek provides Wells Fargo with its capture control software.
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`Compl., Ex. B (Texas Compl. ¶¶ 29, 36).
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`Not only was Mitek implicated in the Texas complaint but it was also brought into the
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`Texas litigation – e.g., providing discovery as a third party. See, e.g., Compl. ¶ 12 (alleging that
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`USAA “sought and received . . . documents and source code from Mitek and deposition testimony
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`from several Mitek witnesses regarding the operation of MiSnap™”); Stern Decl., Ex. 2 (notice of
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`subpoena, dated 5/16/2019, issued by USAA on Mitek in the Texas case). Also, both USAA and
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`Wells Fargo witnesses were asked and provided testimony about Mitek at trial. See generally
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`Opp’n at 4 (citing trial testimony).
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`Mitek did not initiate the current declaratory judgment action until after the jury trial had
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`already begun in the Texas case. In November 2019 – just a few days after Mitek filed the instant
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`case – the jury in the Texas case reached a verdict in favor of USAA, awarding it $200 million.
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`See Glasser Decl., Ex. 6 (verdict form).
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`II.
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`DISCUSSION
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`USAA has moved to dismiss for lack of subject matter jurisdiction and, in the alternative,
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`2 According to Mitek, Wells Fargo is its only customer that USAA has sued as of date. See Opp’n
`at 1. Mitek characterizes the Texas case as a “bellwether lawsuit.” Opp’n at 1.
`3
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`Northern District of California
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`United States District Court
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 4 of 10 PageID #: 1089
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`for a transfer to the Eastern District of Texas. Although USAA has moved to transfer in the
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`alternative, the Court shall consider the transfer motion first because, if a transfer is in fact
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`warranted, then the transferee court, and not this Court, should decide the merits of the motion to
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`dismiss.
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`According to USAA, this Court should transfer this case to the Eastern District of Texas
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`pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides: “For the convenience of parties and
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`witnesses, in the interest of justice, a district court may transfer any civil action to any other
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`district or division where it might have been brought or to any district or division to which all
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`parties have consented.”3 28 U.S.C. § 1404(a). USAA contends that a transfer to the Eastern
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`District of Texas is appropriate because that is where it sued Wells Fargo – one of Mitek’s main
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`customers – for patent infringement based on the same patents at issue here.
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`1.
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`Whether Action Could Have Been Brought in the Eastern District of Texas
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`In deciding whether to transfer, the Court must first determine whether Mitek could have
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`filed the instant case in the Eastern District of Texas. Whether the action could have been brought
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`in the Eastern District of Texas turns on 28 U.S.C. § 1391, the venue statute. Section 1391(b)(1)
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`3 The Court notes that it asked the parties to provide supplemental briefing as to whether the
`Northern District of California is even a proper venue in the first place. If not, then any transfer
`would need to be made pursuant to 28 U.S.C. § 1406(a) instead of § 1404(a).
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`Having reviewed the parties’ supplemental briefs, the Court agrees with Mitek that USAA
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`has waived any argument of improper venue. The Court also notes that venue appears to be
`proper given that USAA did not contest that it is subject to personal jurisdiction in the Northern
`District of California. See 28 U.S.C. § 1391(b)(1) (providing that a civil action may be brought in
`a judicial district in which the defendant resides, and a defendant’s residence is defined in §
`1391(c)(1) as a judicial district in which the defendant is subject to personal jurisdiction); see also
`Ward v. Certain Underwriters at Lloyd's of London, No. 18-cv-07551-JCS, 2019 U.S. Dist.
`LEXIS 79664, at *10-11 (N.D. Cal. May 10, 2019) (“[T]he Court has personal jurisdiction over
`Defendants based on waiver and consent, even if for no other reason. As far as this Court is
`aware, every court to consider the issue has held that personal jurisdiction even based on waiver is
`sufficient to establish ‘residency’ for the purpose of § 1391(c)(2).”); AT&T Corp. v. Teliax, Inc.,
`No. 16-cv-01914-WHO, 2016 U.S. Dist. LEXIS 106515, at *5 (N.D. Cal. Aug. 11, 2016) (“[I]f an
`entity defendant waives its right to object to personal jurisdiction, it has ipso facto consented to
`venue under [28. U.S.C. § 1391].”) (internal quotation marks omitted).
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`Because venue is proper under § 1391(b)(1), the Court does not address whether venue
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`could also be proper under § 1392(b)(2). See 28 U.S.C. § 1391(b)(2) (providing that a civil action
`may be brought in “a judicial district in which a substantial part of the events or omissions giving
`rise to the claim occurred”).
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`4
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`Northern District of California
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`United States District Court
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 5 of 10 PageID #: 1090
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`provides that a civil action may be brought in “a judicial district in which any defendant resides.”
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`28 U.S.C. § 1391(b)(1).
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`Here, Mitek argues that USAA cannot rely on § 1391(b)(1) to establish the Eastern District
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`of Texas as a viable forum because USAA resides in the Western District of Texas, and not the
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`Eastern District. In response, USAA disputes that it resides only in the Western District of Texas,
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`where San Antonio is located. USAA notes that an entity with the capacity to be sued (whether or
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`not incorporated) as a defendant is deemed to reside “in any judicial district in which [it] is subject
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`to the court’s personal jurisdiction with respect to the civil action in question,” 28 U.S.C. §
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`1391(c)(2); if a state has more than one judicial district, the “corporation shall be deemed to reside
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`in any district in that State within which its contacts would be sufficient to subject it to personal
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`jurisdiction if that district were a separate State.” Id. § 1391(d). According to USAA, this means
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`that it can be sued not only in the Western District of Texas, but also the Eastern District. USAA
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`has submitted a declaration from its Vice President for Distributed Infrastructure Services, which
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`states that:
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`• “USAA maintains eight offices throughout the State of Texas”;
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`• “USAA’s Chief Technology and Design Office is located in Plano, Texas,” which
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`is based in the Eastern District;
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`• “USAA has operated out of its Plano campus since 2013”;
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`• “[USAA’s Plano campus has] over 800 USAA employees.”
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`Parks Decl. ¶ 4-6 (also testifying that “USAA has a large IT infrastructure [that] operate[s] out of
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`its Plano, Texas office”). The above sufficiently establishes general jurisdiction in the Eastern
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`District.
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`In response, Mitek primarily objects to the Parks declaration because it was submitted for
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`the first time in reply. But this objection does not have merit given that USAA did argue in its
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`motion that the instant lawsuit could have been brought in the Eastern District based on personal
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`jurisdiction, see Mot. at 15, and it does not appear to be any secret as to where USAA has offices.
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`Therefore, the instant action could have been brought in the Eastern District of Texas
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`pursuant to § 1391(b)(1).
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 6 of 10 PageID #: 1091
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`2.
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`Convenience of Parties and Witnesses and the Interests of Justice
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`Because the instant case could have been brought in the Eastern District, the Court now
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`considers whether the convenience of parties and witnesses, and the interests of justice, weigh in
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`favor of a transfer there.4
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`A district court has discretion in deciding whether to transfer. See Ventress v. Japan
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`Airlines, 486 F.3d 1111, 1118 (9th Cir. 2007) (stating that a “district court’s decision to change
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`venue is reviewed for abuse of discretion”; adding that “‘[w]eighing of the factors for and against
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`transfer involves subtle considerations and is best left to the discretion of the trial judge’”). In
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`making the decision on whether to transfer, a court may consider factors such as:
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`(1) plaintiffs’ choice of forum, (2) convenience of the parties, (3)
`convenience of the witnesses, (4) ease of access to the evidence, (5)
`familiarity of each forum with the applicable law, (6) feasibility of
`consolidation with other claims, (7) any local interest in the
`controversy, and (8) the relative court congestion and time of trial in
`each forum.
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`Vu v. Ortho-Mcneil Pharm., Inc., 602 F. Supp. 2d 1151, 1156 (N.D. Cal. 2009) (Illston, J.). The
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`party moving for transfer has the burden in showing that transfer is appropriate. See Commodity
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`Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); S.F. Residence Club, Inc.
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`v. Leader Bulso & Nolan, PLC, No. C-13-0844 EMC, 2013 U.S. Dist. LEXIS 68600, at *22 (N.D.
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`Cal. May 14, 2013).
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`In the instant case, the critical factors are (1) plaintiff’s choice of forum, (3) convenience
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`of the witnesses, and (6) feasibility of consolidation with other claims. Cf. Bryant Vineyards Ltd.
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`v. Ridenhour, No. C-19-4363 EMC (N.D. Cal.) (Docket No. 45) (Order at 5) (focusing on these
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`factors).
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`As to the first factor,
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`[t]he general rule is that a plaintiff's choice of forum is afforded
`substantial weight. But, "the degree to which courts defer to the
`plaintiff's chosen venue is substantially reduced where the plaintiff
`does not reside in the venue or where the forum lacks a significant
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`4 The Court also asked the parties to provide supplemental briefing on whether there could be a
`transfer to the Southern District of California, which is where Mitek is based. For the reasons
`discussed below, the Court need not address this issue.
`6
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`Northern District of California
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`United States District Court
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 7 of 10 PageID #: 1092
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`connection to the activities alleged in the complaint." If there is any
`indication that plaintiff's choice of forum is the result of forum
`shopping, plaintiff's choice will be accorded little deference.
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`Williams v. Bowman, 157 F. Supp. 2d 1103, 1106 (N.D. Cal. 2001).
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`In the instant case, the Court accords little deference to Mitek’s choice of forum precisely
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`because Mitek does not reside in the Northern District of California and this District lacks a
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`significant connection to the activities alleged in the complaint. The parties’ briefing makes clear
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`that the dispute between the instant parties concerns whether Mitek indirectly infringes on
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`USAA’s patents. Whether or not Mitek indirectly infringes will largely turn on its conduct in the
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`Southern District of California where the company is based. The fact that Mitek has some thirteen
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`(13) customers in the Northern District of California is not enough to establish a significant
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`connection to this District. Mitek claims that more than 6,400 financial institutions have licensed
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`its Mobile Deposit® technology. See Carnecchia Decl. ¶ 2. It appears from the Wells Fargo trial
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`that, about 1,000 of these customers use the auto capture feature (i.e., the MiSnap technology
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`which is at issue in this case). See Glasser Decl., Ex. 1 (Wells Fargo Trial Tr. at 4-5). Out of
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`these 1,000 customers who use MiSnap, only 13 are based in the Northern District of California.
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`See Carnecchia Decl. ¶ 8. Therefore, only about 1% (i.e., 13 out of 1,000) are in the Northern
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`District of California. Mitek argues that one of its most significant customers is based in this
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`District – i.e., Wells Fargo. But Mitek has specifically disavowed that this case involves Wells
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`Fargo, see, e.g., Opp’n at 13 (indicating that Mitek is not seeking a declaration that impacts
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`customers already sued – i.e., Wells Fargo), and, therefore, Mitek cannot claim that the instant
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`case has a significant connection to this District based on its relationship with Wells Fargo.
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`Mitek contends still that the Northern District is a convenient forum because it “partners
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`with other financial service companies to help successfully integrate MiSnap™ into various
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`financial institutions’ mobile check deposit applications” – and one such financial service
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`company is Ensenta, which is based in Redwood City. Carnecchia Decl. ¶ 7. “Ensenta serves
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`more than 1,100 financial institutions.” Carnecchia Decl. ¶ 7. But the Carnecchia Declaration
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`does little to show that Ensenta is a critical witness. For example, there is no clear statement in the
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`declaration that Ensenta was the main partner that Mitek used when it licensed MiSnap to 1,000
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`Northern District of California
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`United States District Court
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 8 of 10 PageID #: 1093
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`customers. Also, it is not clear that Ensenta actually does anything of substance that would make
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`it a critical witness on the issue of infringement.
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`Finally, Mitek asserts that the Northern District is a convenient forum because USAA
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`hired counsel from Burlingame to send out the thousands of demand letters. But here it is difficult
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`to see how USAA’s counsel will be a critical witness. According to Mitek, USAA’s counsel “will
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`be essential to many issues in the case, including notice, infringement, willfulness, and damages,”
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`Pl.’s Supp. Br. at 3. However, in this case, Mitek simply seeks a declaratory judgment of
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`noninfringement. Willfulness and damages therefore are not at issue, at least in the absence of
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`USAA bringing a counterclaim for infringement (which it has not done as of yet). As for notice,
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`the fact of the demand letters is not likely to be disputed, and, in any event, notice does not appear
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`to be an issue absent a counterclaim for infringement as well. Finally, while USAA’s counsel
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`could theoretically provide testimony on infringement, USAA itself would likely provide that
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`testimony, which would render counsel’s testimony largely duplicative. Advice of USAA’s
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`counsel on infringement might also be privileged. Compare In re EchoStar Communs. Corp., 448
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`F.3d 1294, 1299 (Fed. Cir. 2006) (noting that, “[o]nce a party announces that it will rely on advice
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`of counsel, for example, in response to an assertion of willful infringement, the attorney-client
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`privilege is waived”) (emphasis added); see also In re Seagate Tech., LLC, 497 F.3d 1360, 1374
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`(Fed. Cir. 2007) (“hold[ing], as a general proposition, that asserting the advice of counsel defense
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`and disclosing opinions of opinion counsel do not constitute waiver of the attorney-client privilege
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`for communications with trial counsel”).
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`Accordingly, for the reasons stated above, the Court accords little deference to Mitek’s
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`choice of forum. At best, the instant case has a weak connection to the Northern District, and the
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`lack of a significant connection indicates that Mitek’s choice of this forum over, e.g., its home
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`forum, smacks of forum shopping.
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`With respect to the third factor – convenience of the witnesses – it is largely neutral.
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`Based on the record submitted, the critical witnesses will be either Mitek witnesses (based on the
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`Southern District of California) or USAA witnesses (based in the Eastern and/or Western District
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`of Texas). Although convenience of nonparty witnesses typically is deserving of more
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`8
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`Northern District of California
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`United States District Court
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 9 of 10 PageID #: 1094
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`consideration than the convenience of party witnesses, there is no indication that there are critical
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`nonparty witnesses in this District.
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`Finally, the sixth factor – feasibility of consolidation with other claims – weighs strongly
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`in favor of transfer. Cf. Wireless Consumers All., Inc. v. T-Mobile USA, Inc., No. C 03-3711
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`MHP, 2003 U.S. Dist. LEXIS 26802, at *13 n.3 (N.D. Cal. Oct. 14, 2003) (noting that “pendency
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`of an intimately related case in proposed transferee district remains a strong reason for transfer
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`even if it is improbable that cases would be consolidated due to more advanced status of the
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`pending case”). The Court recognizes that Mitek was not a party to the Wells Fargo litigation and
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`that, in the instant case, Mitek is asking for a judgment on indirect infringement with respect to
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`customers other than Wells Fargo. However, the Wells Fargo litigation involved the same exact
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`patents at issue in the instant case and the issue of how Mitek’s technology was used by a
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`customer accused of infringement was explored in the Eastern District of Texas. Thus, even
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`though this case may not be formally consolidated, transfer will facilitate at the very least
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`coordination in that district. See id. at *13.
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`The Court concludes that, based on the record before it, a transfer to the Eastern District of
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`Texas is appropriate. In this regard, the Court notes that Mitek could have provided evidence
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`beyond that submitted in the Carnecchia Declaration to support a connection to this forum. That
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`Mitek rested solely on this somewhat evasive declaration5 further supports the Court’s conclusion
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`that there is at best a weak connection to this District and that Mitek appears to have engaged in
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`forum shopping in filing here.
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`///
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`///
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`///
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`5 As noted above, the Carnecchia Declaration is evasive with respect to the role that Ensenta plays.
`Moreover, although Mr. Carnecchia notes in his declaration that there are thirteen (13) customers
`who use MiSnap in the Northern District of California, he does not provide information as to
`where Mitek’s other customers who use the technology are based. In addition, his declaration
`does not even clearly state that there are more customers in the Northern District as opposed to the
`Southern District where Mitek is based. Mr. Carnecchia identifies California customers outside of
`the Northern District but does not definitively say that this is a complete list of Mitek’s California
`customers.
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`Case 2:20-cv-00115-JRG Document 45 Filed 04/21/20 Page 10 of 10 PageID #: 1095
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`III.
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`CONCLUSION
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`For the foregoing reasons, the motion to transfer is granted.
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`The Clerk of the Court is ordered to transfer the instant case to the Eastern District of
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`Texas and close the file in this case.
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`This order disposes of Docket No. 19.
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`IT IS SO ORDERED.
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`Dated: April 21, 2020
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`______________________________________
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`EDWARD M. CHEN
`United States District Judge
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