Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 1 of 15
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`VOXER, INC. AND VOXER IP LLC,
`Plaintiffs,
`
`
`v.
`
`FACEBOOK, INC AND
`INSTAGRAM LLC,
`Defendants.
`
`
`
`
`CIVIL ACTION 6:20-cv-00011-ADA
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`ORDER GRANTING IN PART DEFENDANT FACEBOOK’S
`MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a)
`
`
`
`Came on for consideration this date the Motion of Defendants Facebook, Inc. and
`
`Instagram LLC, (collectively, “Facebook”1) to transfer under 28 U.S.C. § 1404(a), filed on
`
`February 28, 2020. ECF No. 29. Plaintiffs Voxer Inc. and Voxer IP LLC, (collectively, “Voxer”2)
`
`filed its response on March 16, 2020 (ECF No. 36). Facebook submitted its reply on March 19,
`
`2020 (ECF No. 41). After careful consideration of the above briefing the Court DENIES
`
`Facebook’s motion to transfer the case to the Northern District of California (“NDCA”), but
`
`GRANTS Facebook’s alternative motion to transfer the case to the Austin Division of the Western
`
`District of Texas (“WDTX”), for the reasons described below.
`
`
`
`
`
`
`
`
`1 Defendant Instagram is a Delaware limited liability company and a wholly-owned subsidiary of Facebook. ECF No.
`1 at ¶10–11 Facebook is a Delaware corporation with a principal place of business in NDCA. Id.
`2 Plaintiff Voxer, Inc. is a Delaware corporation with its principal place of business in NDCA, Voxer IP, LLC., is
`Delaware limited liability company and the legal owner of the Asserted Patents. Id. at ¶9 Voxer IP, LLC, is a wholly-
`owned subsidiary of Voxer Inc. Id.
`
`
`
`1
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 2 of 15
`
`I.
`
`Factual Background and Procedural History
`
`Voxer filed this lawsuit on January 7, 2020, alleging infringement of the five patents-in-
`
`suit.3 ECF No. 1 at 2. According to the Complaint, these highly technical patents enable the reliable
`
`transmission of voice and video communications with the immediacy of live communication. Id.
`
`at 1. Further, these technologies work together to enable streaming media, as it is created to be
`
`instantly transmitted, under poor and varying network conditions, to other viewers to watch in real
`
`time or the media can be stored on networks for later views. Id. at 15–40. Voxer alleges that both
`
`Defendants’ have multiple products4 that directly and continuously infringed on the asserted
`
`patents. Id. at 3–4.
`
`Facebook filed a motion to transfer venue under 28 U.S.C. § 1404(a) requesting that the
`
`case be transferred to the Northern District of California (“NDCA”) or, in the alternative, to the
`
`Austin Division of the Western District of Texas (“WDTX”). ECF No. 29 at 1.
`
`II.
`
`Standard of Review
`
`Title 28 U.S.C. § 1404(a) provides that, for the convenience of parties and witnesses, a
`
`district court may transfer any civil action to any other district or division where it might have been
`
`brought or to any district or division to which all parties have consented. “Section 1404(a) is
`
`intended to place discretion in the district court to adjudicate motions for transfer according to an
`
`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
`
`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
`
`The party moving for transfer carries the burden of showing good cause. In re Volkswagen of Am.,
`
`
`3 U.S. Patent Nos. 8,180,030 (the “ ’030 Patent”); 9,634,969 (the “’969 Patent”); 10,109,028 (the “ ’028 Patent”);
`10,142,270 (the “ ’270 Patent”); and 10,511,557 (the “ ’557 Patent”), (collectively, the “Asserted Patents”).
`4 The four products include: (1) facebook.com and instagram.com websites; (2) Facebook Live and Instagram Live
`services; (3) the Facebook and Instagram applications for mobile and other devices; and (4) devices running the
`Facebook or Instagram applications. See, ECF No. 1 at 3–4.
`
`
`
`2
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 3 of 15
`
`Inc., 545 F.3d 304, 314 (5th Cir. 2008) (hereinafter “Volkswagen II”) (“When viewed in the context
`
`of § 1404(a), to show good cause means that a moving party, in order to support its claim for a
`
`transfer, must . . . clearly demonstrate that a transfer is ‘[f]or the convenience of parties and
`
`witnesses, in the interest of justice.’”) (quoting 28 U.S.C. § 1404(a)).
`
`“The preliminary question under § 1404(a) is whether a civil action ‘might have been
`
`brought’ in the destination venue.” Volkswagen II, 545 F.3d at 312. If so, in the Fifth Circuit, the
`
`“[t]he determination of ‘convenience’ turns on a number of public and private interest factors,
`
`none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar.
`
`Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of access
`
`to sources of proof; (2) the availability of compulsory process to secure the attendance of
`
`witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that
`
`make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203
`
`(5th Cir. 2004) (hereinafter “Volkswagen I”) (citing to Piper Aircraft Co. v. Reyno, 454 U.S. 235,
`
`241 n.6 (1982)). The public factors include: “(1) the administrative difficulties flowing from court
`
`congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity
`
`of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems
`
`of conflict of laws of the application of foreign law.” Id. Courts evaluate these factors based on
`
`“the situation which existed when the suit was instituted.” Hoffman v. Blaski, 363 U.S. 335, 343
`
`(1960).
`
`A court may “consider undisputed facts outside the pleadings, but it must draw all
`
`reasonable inferences and resolve all factual conflicts in favor of the non-moving party.”
`
`Weatherford Tech. Holdings, LLC v. Tesco Corp., No. 2:17-CV-00456-JRG, 2018 WL 4620636,
`
`at *2 (E.D. Tex. May 22, 2018). “The court cannot transfer a case where the result is merely to
`
`
`
`3
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 4 of 15
`
`shift the inconvenience of the venue from one party to the other.” Sivertson v. Clinton, 2011 WL
`
`4100958, at *3 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.) (citing Fowler v. Broussard, 2001 WL
`
`184237, at *6 (N.D. Tex. Jan. 22, 2001) (Fitzwater, J.).
`
`A plaintiff’s choice of venue is not an independent factor in the venue transfer analysis,
`
`and courts must not give inordinate weight to a plaintiff’s choice of venue. Volkswagen II, 545
`
`F.3d at 314 n.10, 313 (“[W]hile a plaintiff has the privilege of filing his claims in any judicial
`
`division appropriate under the general venue statute, § 1404(a) tempers the effects of the exercise
`
`of this privilege.”). However, “when the transferee venue is not clearly more convenient than the
`
`venue chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. at 315; see also QR
`
`Spex, Inc. v. Motorola, Inc., 507 F.Supp.2d 650, 664 (E.D. Tex. 2007) (characterizing movant’s
`
`burden under § 1404(a) as “heavy”).
`
`III. Discussion regarding transfer to the Northern District of California
`
`As a preliminary matter, neither party contests that venue could be proper in NDCA and
`
`could have been filed there. Facebook argues that transfer from WDTX is appropriate because it
`
`has determined that the Voxer’s Complaint concerns only Facebook Live and Instagram Live
`
`(collectively, “Live Products”), which are primarily created and maintained in three other locations
`
`and specifically not in WDTX. ECF No. 29 at 2. In its response, Voxer illustrates how each of the
`
`accused products is intertwined with each of the others, and to focus on only two of them would
`
`ignore the majority of highly relevant information within WDTX. ECF No. 38 at 1–3. The Court
`
`resolves factual conflicts, of this nature, in favor of the non-movant. See Weatherford Tech, 2018
`
`WL 4620636, at *2. Thus, the Court concludes that the other accused products may be equally as
`
`relevant to the case and should be decided by the Jury.
`
`
`
`
`
`4
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 5 of 15
`
`
`
`a. Relative ease of access to sources of proof
`
`In considering the relative ease of access to proof, a court looks to where documentary
`
`evidence, such as documents and physical evidence, is stored. Volkswagen II, 545 F.3d at 316.
`
`Facebook argues that this factor weighs in favor of transfer to NDCA because the majority of the
`
`“relevant proof” is not in WDTX. ECF No. 29 at 6. Although Facebook admits it has an office and
`
`employees in WDTX, it claims “only one employee works part-time on the Live products.” Id. at
`
`2. Additionally, Facebook asserts that “the relevant documentation regarding the design,
`
`development, operations, marketing, and financing of both Live products is created and maintained
`
`primarily by the employees in NDCA.” Id. Finally, as an additional factor, Facebook claimed that
`
`“a great majority, if not all,” of Voxer’s witnesses are located in the NDCA. Id. at 6 (emphasis
`
`in original).
`
`In its response, Voxer makes two counterarguments regarding Facebook’s analysis of the
`
`source of proof. First, Voxer argues that Facebook has incorrectly concluded that its only relevant
`
`documents and employees to the case are those that support the Live products. ECF No. 38 at 2.
`
`Specifically, Voxer asserts that Facebook’s attempt to limit the scope of Voxer’s claim to just two
`
`Live products ignores that there would in fact be accessible proof for the non-Live products within
`
`the WDTX. Id. at 7. Additionally, Voxer points to the fact that although only one Facebook Live
`
`employee works part-time in Austin, there are over 1,500 other employees in the area serving in
`
`a broad range of roles that support all other products at issue. Id. at 3. Voxer also points to the
`
`“numerous” job openings for roles that support the accused products, specifically the video
`
`services. Id.
`
`
`
`5
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 6 of 15
`
`Second, regarding its own sources of proof, Voxer asserts that all documents and witnesses
`
`concerning the patents at hand will be accessible from the WDTX. Id. at 4. Voxer identifies several
`
`current and former employees5 that it contends will have the most relevant knowledge about the
`
`patents. Id. Voxer proffers evidence that they are dispersed throughout the country and a transfer
`
`to NDCA would not be clearly more coinvent than the WDTX.6 Id.
`
`In its Reply, Facebook asserts it has determined the scope of the case based on the patents
`
`asserted and the likely accused products, and the employees with knowledge of the accused
`
`products are primarily located in Northern California. ECF No. at 4. Additionally, Facebook
`
`emphasizes that the “thrust” of the Voxer’s Complaint is Facebook Live and Instagram Live, and
`
`the other Facebook products are nothing more than “generic allegations.” ECF No. 41 at 2.
`
`In previous orders, this Court has lamented about the fact that the “relative ease of access
`
`to sources of proof” factor, namely the location of documents, is somewhat anachronistic with
`
`respect to modern litigation, especially modern patent litigation. This is because access to most
`
`information is no longer a geographic construct, it is likely available anywhere that a company or
`
`an attorney has a computer or a laptop and a printer. But to make clear, while the Court may
`
`question the relevance of this element in 2020, it must faithfully adhere to Fifth Circuit precedent.
`
`Thus, the Court finds that the “relative ease of access to sources of proof” slightly weighs in favor
`
`of the requested transfer for the following reasons: First, although Voxer asserts that its documents
`
`are accessible in the WDTX, because Facebook is the accused infringer, it is likely that Facebook
`
`will have the bulk of the documents that are relevant in this case. See, e.g., In re Genentech, Inc.,
`
`
`5 (1) Co-founder and named inventor of several of the patents Tom Katis, who lives and works in Jackson, Wyoming.
`See, ECF No. 38-2. (2) Co-founder and named inventor of several of the patents Matthew Ranney, who lives in
`Pittsburg, Pennsylvania. See, ECF No. 38-5
`6 Voxer provides several potential third-party witnesses that have indicated that they are willing to testify in
`WDTX. See, ECF No. 38-2, T. Katis Decl. ¶5; ECF No. 38-3, J. Panttaja Decl. ¶ 10; ECF No. 38-4, M. Panttaja
`Decl. ¶ 10; CF No. 38-5, Ranney Decl. ¶ 5.
`
`
`
`6
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 7 of 15
`
`566 F.3d 1338, 1345 (Fed. Cir. 2009) (“In patent infringement cases, the bulk of the relevant
`
`evidence usually comes from the accused infringer. Consequently, the place where the defendant's
`
`documents are kept weighs in favor of transfer to that location.”). Therefore, the Court finds that
`
`the location of the documents relevant in this case weighs slightly towards transfer.
`
`Next, the Court finds that for party witnesses, NDCA and WDTX are equally convenient.
`
`More specifically, while Facebook has identified multiple employees in NDCA with relevant
`
`information and states that it only has one Austin employee that works part-time on the Live
`
`products, Voxer identifies at least 14 other Austin Facebook employees who may have relevant
`
`information. Furthermore, Voxer asserts that some of the Austin-based Facebook employees may
`
`have knowledge of Facebook’s other alleged products websites, including “the website” and “the
`
`mobile app” that could support Voxer’s indirect infringement claims. ECF No. 38 at 2–4. Because
`
`the parties have identified potential witnesses in both NDCA and WDTX (with varying levels of
`
`specificity), the Court finds that the issue of the location of party witnesses are neutral in terms of
`
`transfer. Thus, because the Live products documents location weighs in favor of transfer and the
`
`location of the remaining of the products documents and party witnesses is neutral towards
`
`transfer, the Court finds that the relative ease of access to sources of proof only slightly weighs in
`
`favor of transfer.
`
`b. Availability of compulsory process to secure the attendance of witnesses
`
`The next factor the Court considers is the availability of compulsory process to secure the
`
`attendance of witnesses, particularly non-party witnesses whose attendance may need to be secured
`
`by a court order. See Volkswagen II, 545 F.3d at 316. In its opening brief, Facebook contends that
`
`this is the strongest factor in favor of transfer. ECF No. 29 at 7. Facebook stresses that NDCA, and
`
`not WDTX , has absolute subpoena power over both companies’ potentially relevant witnesses,
`
`
`
`7
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 8 of 15
`
`either former employees or third-party witnesses. Id at 8. Finally, Facebook asserts that at least
`
`two potential non-party prior art sources have their principal places of business in Northern
`
`California. Id.
`
`In its response, Voxer argues that this factor weighs against transfer for three reasons. First,
`
`while the convenience of witnesses is important, the convenience of party witnesses is
`
`appropriately given little weight. ECF No. 38 at 8. Second, the majority of Voxer’s witnesses have
`
`moved from NDCA and are all willing to travel to the WDTX for this case, which negates the
`
`relevance of their distance from Texas and the availability of compulsory process as a factor
`
`favoring transfer. Id. at 9. Third, Facebook has not confirmed that its former employees would be
`
`unwilling to testify in this District. Further, Facebook has not clarified how the former employees
`
`would have unprivileged information that is not already available to Facebook. Id.
`
`Additionally, with respect to Facebook’s Austin office, Voxer argues that Facebook
`
`downplays its relevance to the products and/or services at issue. Id. at 8. Voxer identifies at least
`
`14 Facebook employees located in this District who appear to possess relevant knowledge. Id. at
`
`3. In its Reply, Facebook asserts that Voxer’s failure to identify third-party witnesses, subject to
`
`compulsory process in the WDTX, is evidence in favor of transfer to NDCA. ECF No. 41 at 4.
`
`After considering the arguments, the Court finds that this factor is neutral for the reasons
`
`that follow. First, the parties have identified potential witnesses that may have relevant information
`
`in both NDCA and WDTX as well as outside of either District. For Facebook witnesses, although
`
`the parties disagree whether there are any Facebook witnesses in WDTX that may have relevant
`
`information, the Court resolves factual conflicts in favor of the non-movant. Weatherford, 2018
`
`WL 4620636 at *2. Thus, the Court views that because of wide range of roles, responsibilities,
`
`services, Facebook’s employees perform within the WDTX, they would have access to the relevant
`
`
`
`8
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 9 of 15
`
`information. Furthermore, because Voxer provided declarations from identified third-party
`
`witnesses stating that they are willing to travel, and Facebook lack of evidence that its third-party
`
`witnesses would be unwilling to travel, the Court finds Facebook’s argument that this factor favors
`
`transfer unpersuasive. See, ECF No. 38 at 4 (citing Declaration of Tom Katis, Exs B. ¶4–5). See
`
`Arielle, Inc. v. Monster Cable Prod., Inc., No. 2:06-CV-00382, 2007 WL 951639, at *2 (E.D. Tex.
`
`Mar. 26, 2007) (convenience of witnesses did not support transfer where plaintiff provided
`
`affidavits stating that “key” witnesses were willing to travel to Marshall, Texas). Accordingly,
`
`because there may be Facebook witnesses with relevant information in both NDCA and WDTX,
`
`and because the inventors of the Patents-in-Suit are willing to testify in this District, the Court
`
`finds that the location of the Facebook witnesses is a neutral factor.
`
`c. Cost of attendance for willing witnesses
`
`The convenience of witnesses is the single most important factor in the transfer analysis.
`
`In re Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009). The Court should consider all
`
`potential material and relevant witnesses. See Alacritech Inc. v. CenturyLink, Inc., No. 2:16-cv-
`
`693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017). “When the distance between an existing
`
`venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor
`
`of inconvenience to witnesses increases in direct relationship to the additional distance to be
`
`traveled.” Id. at 1343. However, the convenience of party witnesses is given little weight compared
`
`to non-party witnesses. See ADS Sec. L.P. v. Advanced Detection Sec. Servs., Inc., No. A-09-CA-
`
`773-LY, 2010 WL 1170976, at *4 (W.D. Tex. Mar. 23, 2010), report and recommendation adopted
`
`in A-09-CA-773-LY (ECF No. 20) (Apr. 14, 2010).
`
`Facebook contends that all of its expected witnesses are located in NDCA, New York, and
`
`Seattle. ECF No. 29 at 3. Facebook asserts that, because the “most known third-party and party
`
`
`
`9
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 10 of 15
`
`witnesses are in Northern California, some 1,500 miles away from the Western District,” the
`
`burden of attending trial would be significantly greater in WDTX than in NDCA. Id. at 8. Facebook
`
`further argues that due to Voxer’s small workforce, primarily located in Northern California,
`
`requiring employees to travel to Texas will be highly disruptive to Voxer’s business. Id. Typically,
`
`this Court has some skepticism when the party who is arguing that a case should be transferred
`
`relies on the lack of convenience for the relevant witnesses that will be called by the party who
`
`filed the suit in this venue. This skepticism proves justified here with the evidence proffered by
`
`Voxer.
`
`Voxer, asserts (and the Court accepts as credible) that the majority of its relevant witnesses
`
`are not located in NDCA; instead, its key witnesses reside in Pennsylvania, Wyoming, and
`
`Arizona. ECF No. 38 at 9. Voxer provides declarations from these third-party witnesses stating
`
`that they would be willing to travel to WDTX. Id. Further, Voxer asserts that travel costs and
`
`accommodations for its witnesses would be more costly and less convenient in NDCA than in
`
`WDTX. Id. Therefore, Voxer argues that it is far easier and more cost-effective for Voxer to travel
`
`WDTX. Id. at 3.
`
`The Court finds that this factor weighs against transfer for the following reasons: First, the
`
`cost of attendance of party witnesses does not weigh for or against transfer because there appear
`
`to be several potential witnesses in both NDCA and WDTX, as well as outside either District.
`
`SynKloud Techs., LLC v. Dropbox, Inc., 2020 WL 2494574, at *5 (W.D. Tex. May 14, 2020).
`
`Second, the cost of attendance of Facebook witnesses is neutral because the parties identified
`
`potential Facebook witnesses in both districts. Likewise, the cost of attendance of Voxer is also
`
`neutral because regardless of the District, the witnesses will have to travel over 1,000 miles.
`
`Finally, although Facebook argues that its’ “relevant” third-party witnesses that all that reside in
`
`
`
`10
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 11 of 15
`
`NDCA, it does not specify how the former Live employees would have relevant information that
`
`Facebook does not have access to. Because both districts have several potential Facebook
`
`witnesses, including the one Live employee in WDTX, compared to the substantial cost disparity
`
`for the willing third-party witnesses located elsewhere, the Court finds that the cost of attendance
`
`of willing witnesses factor weighs against transfer to the NDCA.
`
`d. All other practical problems that make trial of a case easy, expeditious and
`inexpensive
`
`
`
`In considering a transfer, this Court must consider “all other practical problems that make
`
`trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d at 314. Multiple suits
`
`involving the same or similar issues may create practical problems that will weigh in favor for or
`
`against transfer. Uniloc USA, Inc. v. Chief Architect, Inc., No. 6:15-cv-1003-RWS-KNM, 2016
`
`WL 9229319, at *5 (E.D. Texas Dec. 2, 2016) (citing In re Volkswagen of Am., Inc., 556 F.3d
`
`1349, 1351(Fed. Cir. 2009)). This factor is important in cases where, for example, “the trial court
`
`involving the same patent and underlying technology during a prior litigation” or where “there is
`
`co-pending litigation before the trial court involving the same patent and underlying technology.”
`
`In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010) (applying Fifth Circuit law). But
`
`considerations of judicial economy and the existence of co-pending litigation are not dispositive
`
`in the transfer analysis. See In re Google Inc., No 2017-107, 2017 WL 977038, at *2 (Fed. Cir.
`
`Feb 23, 2017).
`
`Facebook argues that there are no practical issues against the transfer to the NDCA. ECF
`
`No. 29 at 9. Facebook asserts that since this case is in the early stages, and this Court has neither
`
`had to expend time or expense on this case, this factor would not weigh against a transfer. Id.
`
`Voxer claims that although the factor is not against the transfer, this factor is neutral to the transfer
`
`
`
`11
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 12 of 15
`
`analysis. ECF No. 38 at 9. Further, Voxer argues that there would be no delay if the case is not
`
`transferred. Id.
`
`This factor does not establish that NDCA is clearly more convenient than WDTX in this
`
`case. Although Facebook claims that there are no issues to prevent the transfer, this does not satisfy
`
`the heavy burden required to grant the transfer. The Court finds that this factor is neutral.
`
`e. Administrative difficulties flowing from court congestion
`
`The relevant inquiry under this factor is actually “[t]he speed with which a case can come
`
`to trial and be resolved[.]” In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009). In its
`
`motion, Facebook argues that this would be a neutral factor for transfer. ECF No. 29 at 10.
`
`Facebook provides data from Lex Machina that shows NDCA7 has a similar median time to trial
`
`(approximately 725 days) for cases to WDTX8 (approximately 619 days). Id.
`
`In its response, Voxer argues that this factor actually weighs against transfer. ECF No. 38
`
`at 10. Voxer cites the data provided by Facebook, which shows that median time to trial of 739
`
`days for civil cases over the last 11 years in NDCA. Id. Additionally, Voxer narrows the
`
`comparison to patent cases in the last five years, which shows the actual median time for NDCA
`
`is 781 days9. Further, Voxer references the Order Governing Proceedings10 (“OGP”), which has
`
`the trial scheduled to start in September 2021, a full six-months ahead of NDCA’s median
`
`timeframe. Id. Finally, Voxer citing Fintiv, argues that since time to trial is faster in this District,
`
`this factor weighs against transfer. Id.
`
`
`7 Data reflects cases in NDCA from January 2009 to February 2020. See, ECF No. 27–13
`8 Data reflects cases from WDTX from January 2015 to February 2020. Id.
`9 Data reflects patent cases in NDCA from January 2015 to February 2020. See, ECF No. 36 – 23
`10 Order Governing Proceedings—Patent Case, Western District of Texas, available at
`https://www.txwd.uscourts.gov/wpcontent/uploads/Standing%20Orders/Waco/Albright/Order%20Governing%20Pr
`oceedings%20-%20Patent%20Cases%20022620.pdf
`
`
`
`12
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 13 of 15
`
`In the Court’s OGP, the trial is scheduled 42–52 weeks after the Markman hearing. ECF
`
`No. 31 at 6–9. In this case, because the Markman hearing is scheduled for October 09, 2020, the
`
`trial will be scheduled to start between September 9, 2021 and October 11, 2021. Even assuming
`
`the latter date, the time from filing (January 7, 2020) to trial will be about 22 months. As such,
`
`because the time to trial will be shorter in this District, the Court finds that this factor weighs
`
`against transfer.
`
`f. Local interest in having localized interests decided at home
`
`In its motion, Facebook argues that NDCA has a far greater local interest in this case, which
`
`strongly favors transfer. ECF No. 29 at 9–10. Facebook’s argument is premised on its view that
`
`the Live technology is Facebook’s only product at issue, that its headquarters are located in NDCA,
`
`the accused technology was primarily developed there, and its employees most knowledgeable
`
`about the finances and marketing of the accused technology are in NDCA. Id. at 2. Facebook also
`
`argues that while it has offices and employees in Austin, they do not provide support to the Live
`
`products that it views as the issue. Id. Therefore, none of its WDTX based employees are key
`
`witnesses to facts relevant to the issues in this case. Id. at 10.
`
`In its response, Voxer asserts that this District has a local interest because Facebook has a
`
`large presence in the district with its Austin office. ECF No. 38 at 2. Voxer also argues that WDTX
`
`has a particularized interest in this case because of Facebook’s large presence and expansion efforts
`
`within the District. Id. at 3. Voxer points to several Facebook employees that have responsibilities
`
`to several of the accused products, as well as at least one that Facebook admits is relevant to the
`
`Live products. Id.
`
`The Court finds that this factor weighs against transfer for the reasons that follow. First,
`
`Facebook has offices in both NDCA and WDTX, so both districts have a significant interest in this
`
`
`
`13
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 14 of 15
`
`case. Furthermore, although the parties dispute whether there are “relevant” Facebook employees
`
`located in WDTX, Voxer has identified several Facebook employees in WDTX that may provide
`
`relevant information. See ECF. No. 36-8. Additionally, as Voxer points out, Facebook is steadily
`
`increasing its already substantial presence in the WDTX. Through Facebook’s multiple offices and
`
`over 1,500 employees, not including the jobs Facebook is currently hiring for in this District, the
`
`WDTX has a significant localized interest with respect to Facebook. For all of these reasons,
`
`Facebook’s contribution to this factor is neutral. Accordingly, given that Facebook’s presence in
`
`both districts is neutral in terms of transfer, the Court finds that the local interest in having localized
`
`interests decided at home is does not favor transfer.
`
`g. Familiarity of the forum with the law that will govern the case
`
`Both parties agree that this factor is neutral. ECF No. 29 at 10 (Facebook), ECF No. 38 at
`
`11 (Voxer). The Court also agrees.
`
`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. 29 at 10 (Facebook), ECF No. 38 at 11
`
`(Voxer). The Court also agrees.
`
`i. Conclusion
`
`Having found that the access to proof factor for Facebook’s Live products slightly weighs
`
`in favor of transfer, while the other accused products access to proof, cost to willing witnesses,
`
`court congestions and local interest weigh against transfer with the other factors being neutral, the
`
`Court finds that Facebook has not met its significant burden to demonstrate that NDCA is “clearly
`
`more convenient.” Volkswagen II, 545 F.3d at 314 n.10, 315; QR Spex, 507 F. Supp. 2d at 664.
`
`
`
`
`
`
`
`14
`
`

`

`Case 6:20-cv-00011-ADA Document 54 Filed 06/22/20 Page 15 of 15
`
`IV. Discussion regarding alternative motion to transfer to Austin
`
`Facebook’s alternative motion is to transfer this case to the Austin Division. Facebook
`
`shows that the Austin Division is clearly more convenient, by its’ offices, employees, and sources
`
`of proof that is readily available in Austin, and none of those factors favor the Waco Division.
`
`ECF No. 29 at 10. However, Voxer attempts to argue that Facebook has failed to show that those
`
`factors favor transfer to the Austin Division. ECF No. 38 at 11.
`
`The Court agrees that the Austin Division is more convenient than the Waco Division for
`
`the reasons Facebook has described. Because Facebook’s substantial presence, the factors
`
`demonstrate that Austin is “clearly more convenient.” In short, whatever facts weigh against
`
`transfer to NDCA from WDTX also weigh in favor of transferring to Austin from Waco.
`
`Therefore, the Court finds that Facebook has met its significant burden of demonstrating that
`
`Austin is “clearly more convenient.”
`
`V.
`
`Conclusion
`
`It is therefore ORDERED that Facebook’s motion for transfer venue to the Northern
`
`District of California is DENIED. It is further ORDERED that Facebook’s alternative motion is
`
`GRANTED and that the above-styled case be TRANSFERRED to the Austin Division but
`
`remain on the docket of United States District Judge Alan D Albright and according to the
`
`scheduling order that was entered in this case on June 10, 2019.
`
`SIGNED and ENTERED this 22nd day of June, 2020.
`
`
`
`
`
`
`
`
`
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`
`15
`
`