Case 6:20-cv-00369-ADA Document 61 Filed 10/19/21 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`PROVEN NETWORKS, LLC.,
` Plaintiff
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`-vs-
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`NETAPP, INC.,
` Defendant
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`W-20-CV-00369-ADA
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`ORDER GRANTING DEFENDANT NETAPP, INC.’S MOTION TO TRANSFER FOR
`TRIAL TO THE NORTHERN DISTRICT OF CALIFORNIA
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`Came on for consideration Defendant NetApp, Inc.’s (“Net App” or “Defendant”)
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`Motion to Transfer for Trial to the Northern District of California (the “NDCA”) (the “Motion”).
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`ECF No. 35. Plaintiff Proven Networks, LLC (“Proven” or “Plaintiff”) filed its Response,
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`entitled Proven Networks, LLC’s Opposition to Defendant’s Motion to Transfer Trial to the
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`Northern District of California, on January 4, 2021. ECF No. 36. Defendant timely filed its
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`Reply. ECF No. 37. After considering the parties’ briefs and the relevant law, the Court
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`GRANTS NetApp’s Motion for the reasons set out below.
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`I. FACTUAL BACKGROUND
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`The instant case is one of several cases ongoing in this District for MDL proceedings. All
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`pretrial proceedings, including discovery, claim construction, and dispositive motions will proceed
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`in this District. Thus, the sole question is whether the case should be transferred to the NDCA for
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`trial only.
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`Proven filed this lawsuit accusing NetApp of infringing U.S. Patent No. 7,450,507 (“’507
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`Patent”) (the “Asserted Patent”). ECF No. 35 at 1–2. Proven alleges that certain aspects of Storage
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`Quality of Service (QoS) within NetApp’s ONTAP 9.4 and later versions (the “Accused
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`Case 6:20-cv-00369-ADA Document 61 Filed 10/19/21 Page 2 of 13
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`Functionality”) and storage and network controllers running these versions of ONTAP software
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`(collectively, the “Accused Products”) infringe the Asserted Patent.
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`Proven is a limited liability company organized and existing under the laws of the State of
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`California. ECF No. 22 ¶ 5. Defendant NetApp is a corporation organized and existing under the
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`laws of the State of Delaware, with its principal place of business in Sunnyvale, California. ECF
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`No. 22 ¶ 6; ECF No. 41 ¶ 6.
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`II. LEGAL STANDARD
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`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
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`the regional circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). 28 U.S.C.
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`§ 1404(a) provides that, “[f]or the convenience of parties and witnesses, . . . a district court may
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`transfer any civil action to any other district or division where it might have been brought or to
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`any district or division to which all parties have consented.” Id. “Section 1404(a) is intended to
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`place discretion in the district court to adjudicate motions for transfer according to an
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`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
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`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`The preliminary question under Section 1404(a) is whether a civil action “might have been
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`brought” in the transfer destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir.
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`2008) (hereinafter “Volkswagen II”). If the destination venue would have been a proper venue,
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`then “[t]he determination of ‘convenience’ turns on a number of public and private interest factors,
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`none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar.
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`Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of access
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`to sources of proof; (2) the availability of compulsory process to secure the attendance of
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`witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that
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`Case 6:20-cv-00369-ADA Document 61 Filed 10/19/21 Page 3 of 13
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`make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203
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`(5th Cir. 2004) (hereinafter “Volkswagen I”) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235,
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`241 n.6 (1982)). 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. Courts evaluate these factors based on
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`the situation which existed at the time of filing, rather than relying on hindsight knowledge of the
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`defendant’s forum preference. Hoffman v. Blaski, 363 U.S. 335, 343 (1960).
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`The burden to prove that a case should be transferred for convenience falls squarely on the
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`moving party. In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010). The burden that a
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`movant must carry is not that the alternative venue is more convenient, but that it is clearly more
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`convenient. Volkswagen II, 545 F.3d at 314 n.10. Although the plaintiff’s choice of forum is not a
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`separate factor entitled to special weight, respect for the plaintiff’s choice of forum is encompassed
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`in the movant’s elevated burden to “clearly demonstrate” that the proposed transferee forum is
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`“clearly more convenient” than the forum in which the case was filed. In re Vistaprint Ltd., 628
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`F.3d at 314–15. While “clearly more convenient” is not necessarily equivalent to “clear and
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`convincing,” the moving party “must show materially more than a mere preponderance of
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`convenience, lest the standard have no real or practical meaning.” Quest NetTech Corp. v. Apple,
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`Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019).
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`III. DISCUSSION
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`The threshold determination in the § 1404(a) analysis is whether this case could initially
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`have been brought in the destination venue—the Northern District of California (“NDCA”).
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`Neither party contests that venue is proper in the NDCA and that this case could have been brought
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`there. ECF No. 35 at 8. See ECF No. 36. This Court finds that venue would have been proper in
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`the NDCA had it been originally filed there. Thus, the Court proceeds with its analysis of the
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`private and public interest factors to determine if the NDCA is clearly more convenient than the
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`Western District of Texas (“WDTX”).
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`A. The Private Interest Factors
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`i. The Relative Ease of Access to Sources of Proof
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-
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`cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[T]he question is relative ease
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`of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases
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`in original). “In patent infringement cases, the bulk of the relevant evidence usually comes from
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`the accused infringer. Consequently, the place where the defendant’s documents are kept weighs
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`in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020) (citing
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`In re Genentech, 566 F.3d 1338, 1345 (Fed. Cir. 2009)).
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`NetApp states that ONTAP was originally developed in the NDCA and that all relevant
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`technical, product development, marketing, sales and financial documents are in the NDCA, and
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`not in the WDTX. ECF No. 35 at 11.
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`Proven argues that NetApp simply offers vague allegations that its documents are
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`accessible in the NDCA and that it fails to meet its burden to show that the documents are more
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`accessible there. ECF No. 36 at 3. Proven further argues that all documents referenced are
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`electronically available, including the source code, and can be easily produced in this District.
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`Last, Proven states that NetApp’s arguments under this factor are moot given this case is subject
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`to MDL proceedings in this District.
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`The Court agrees with Proven’s final assertion: this factor is moot given the nature of the
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`MDL proceedings. This factor focuses on ensuring the convenience of discovery proceedings in
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`preparation for trial. NetApp requests transfer of this case to the NDCA for trial only. All pretrial
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`proceedings, specifically discovery, will occur in this District, even if this case were transferred to
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`the NDCA for trial.
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`Therefore, the Court finds that this factor is moot and gives it no weight.
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`ii. The Availability of Compulsory Process to Secure the Attendance of Witnesses
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`For this factor, the Court considers particularly non-party witnesses whose attendance may
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`need to be secured by a court order. Fintiv, 2019 WL 4743678, at *5 (citing Volkswagen II, 545
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`F.3d at 316); Uniloc, 2020 WL 3415880, at *10. This factor “weigh[s] heavily in favor of transfer
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`when more third-party witnesses reside within the transferee venue than reside in the transferor
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`venue.” In re Apple, Inc., 581 F. App’x. 886, 889 (Fed. Cir. 2014). Under the Federal Rules, a
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`court may subpoena a witness to attend trial only (a) “within 100 miles of where the person resides,
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`is employed, or regularly transacts business in person”; or (b) “within the state where the person
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`resides, is employed, or regularly transacts business in person, if the person . . . is commanded to
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`attend a trial and would not incur substantial expense.” Fed. R. Civ. P. 45(c)(1)(A), (B)(ii);
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`Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL 10818740, at *4 (W.D. Tex. Dec.
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`16, 2015).
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`NetApp points to the four inventors of the ’507 Patent, noting that all four reside in the
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`NDCA. ECF No. 35 at 4. NetApp further lists eight potential prior art trial witnesses who also
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`reside in the NDCA. Id. at 4–5. Last, NetApp argues that the ’507 Patent was developed by
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`Riverstone Networks, which resides in California. Id. at 5. According to NetApp, former
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`Riverstone Networks employees are likely trial witnesses, including Sanjay Jain. Id. Having
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`pointed to 13 likely non-party witnesses located in the NDCA, NetApp argues that none of the
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`witnesses have indicated a willingness to testify in the WDTX. Id. at 8. Furthermore, NetApp
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`contests that no third-party witnesses are within the WDTX’s subpoena power. Id.
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`Proven disputes NetApp’s stance on the willingness of the third-party witnesses provided
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`by NetApp. Proven argues that NetApp fails to show the identified witnesses are unwilling to
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`testify at trial. ECF No. 36 at 7. Proven further argues that the witnesses should be given little
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`weight, as NetApp merely identifies the company that makes or sells the devices at issue. Id. Per
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`Proven, NetApp’s named witnesses are simply an act of cherry-picking individuals located in the
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`NDCA. Last, Proven states that the remaining third-party witnesses may be subpoenaed under
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`Rule 45 and that third-party witness deposition testimony would not be inconvenient. Id. at 8–9.
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`Neither party identifies specific witnesses subject to the WDTX.
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`While the Court remains skeptical of the practicality of long lists of third-party witnesses
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`to be used at trial, there is no doubt that should a third-party witness provide testimony at trial, that
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`witness would likely come from the NDCA. NetApp articulates thirteen potential witnesses, all of
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`whom reside in the NDCA. No third-party witnesses reside in the WDTX. See In re Apple, Inc.,
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`581 F. App’x at 889. Even if NetApp is cherry-picking witnesses, Proven does not counter with
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`any cherry-picked witnesses of its own. The Court does not condone or encourage random or
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`cherry-picked names simply to propose or defeat a motion to transfer. However, the Court’s
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`discretion and analysis is limited when all names fall on one side of the ledger, as they do here.
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`Accordingly, this factor weighs strongly in favor of transfer.
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`iii. The Cost of Attendance and Convenience for Willing Witnesses
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`The most important factor in the transfer analysis is the convenience of the witnesses. In
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`re Genentech, Inc., 566 F.3d at 1342. “When the distance between an existing venue for trial of a
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`matter and a proposed venue under §1404(a) is more than 100 miles, the factor or inconvenience
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`to witnesses increases in direct relationship to the additional distance to be travelled.” Volkswagen
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`II, 545 F.3d at 317 (quoting Volkswagen I, 371 F.3d at 203). “[T]he inquiry should focus on the
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`cost and inconvenience imposed on the witnesses by requiring them to travel to a distant forum
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`and to be away from their homes and work for an extended period of time.” In re Google, LLC,
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`No. 2021-170, slip op. at 9 (Sept. 27, 2021). The Federal Circuit has indicated that time is a more
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`important metric than distance. Id. When considering this factor, the Court should consider all
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`potential material and relevant witnesses. Alacritech Inc. v. CenturyLink, Inc., No. 2:16-CV-
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`00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017).
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`NetApp posits that no party witnesses are located in the WDTX. ECF No. 35 at 9. Instead,
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`likely witnesses knowledgeable about design and operation, product development, finance,
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`licensing and sales and marketing, are based in the NDCA. NetApp’s technical witnesses are also
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`located in North Carolina, for whom travel would be inconvenient regardless of the venue. NetApp
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`contests that Proven provides no evidence that any of the unnamed NetApp employees in the
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`Austin area are likely to be witnesses at trial. No jurisdictional discovery was sought in this case.
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`ECF No. 37 at 3.
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`Proven argues that NetApp’s seven party witnesses have duplicative knowledge and are
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`unlikely to testify at trial. Proven further highlights NetApp’s “admission that relevant witnesses
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`are located in North Carolina.” ECF No. 36 at 5. Last, Proven points to the 40 NetApp employees
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`located in the Austin area, some of whom may have relevant knowledge about the case.
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`The Court summarily rejects NetApp’s arguments regarding the convenience of Plaintiff’s
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`potential witnesses that reside in Los Angeles. Certainly, convenience factors into a plaintiff’s
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`decision of where to file a lawsuit. This Court need not disturb Plaintiff’s own determination of
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`convenience. However, the Court agrees that relevant witnesses are likely in the NDCA. While
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`Proven argues that 40 employees with relevant knowledge exist in the WDTX, it is unclear exactly
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`what that knowledge is. Moreover, Plaintiff’s vague assertions regarding employee knowledge in
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`the WDTX fail to overcome the specificity provided in NetApp’s proposed witness list. While not
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`all of the proposed witnesses will actually testify in trial, specific relevant witnesses exist in the
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`NDCA compared to an unspecific group of witnesses in the WDTX. If such witnesses were named
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`with specificity and found to be relevant during discovery, perhaps the court would weigh this
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`factor differently.
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`Regarding the proposed witnesses from North Carolina, the Federal Circuit provided the
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`following analysis regarding witnesses located in New York that would need to travel to either the
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`WDTX or NDCA:
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`Although it might be true that these individuals will need to travel a
`greater distance to reach NDCA than WDTX, and although a flight
`from New York to WDTX might take a bit less time than from New
`York to NDCA, in either instance these individuals will likely have
`to leave home for an extended period of time and incur travel,
`lodging, and related costs. As expressed in Genentech, the 100-mile
`rule should not be rigidly applied where witnesses will be required
`to travel a significant distance no matter where they testify. These
`witnesses will only be slightly more inconvenienced by having to
`travel to California than to Texas.
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`In re Apple Inc., 979 F.3d at 1342 (internal quotations and citations omitted). This Court
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`similarly finds that travel from North Carolina to the NDCA is more inconvenient than travel to
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`the WDTX.
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`Accounting for the convenience to the named witnesses in the NDCA, the slight
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`inconvenience for witnesses traveling from North Carolina, and the unspecific employees in the
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`WDTX, the Court finds that this factor weighs in favor of transfer.
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`iv. All Other Practical Problems That Make Trial of a Case Easy, Expeditious and
`Inexpensive
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`When considering the private interest factors, courts must consider “all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d at
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`314. “Particularly, the existence of duplicative suits involving the same or similar issues may
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`create practical difficulties that will weigh heavily in favor or against transfer.” PersonalWeb
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`Techs., LLC v. NEC Corp. of Am., Inc., No. 6:11-cv-655, 2013 WL 9600333, at *5 (E.D. Tex. Mar.
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`21, 2013). “[W]here there is a co-pending litigation . . . involving the same patent-in-suit, . . .
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`pertaining to the same underlying technology and accusing similar services, . . . the Federal Circuit
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`cannot say the trial court clearly abuses its discretion in denying transfer.” In re Vistaprint Ltd.,
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`628 F.3d at 1346 n.3. Here, the co-pending litigation is a series of MDL proceedings focused on
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`streamlining the pre-trial process.
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`NetApp makes three arguments regarding this factor. First, Proven chose to assert its
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`patents in the NDCA when it sued NetApp and the transfer factors must be assessed at the time
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`the suit was filed. ECF No. 35 at 12. Second, any pre-trial efficiencies gained in the multiple
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`lawsuits are captured by the MDL process itself. Id. Last, it is clear error to set aside the
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`convenience considerations solely in the name of judicial economy. Id. at 13.
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`Proven argues that transfer to another court, unfamiliar with the parties and particular
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`issues of the case is the opposite of judicial economy. ECF No. 36 at 10. Plaintiff similarly rejects
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`NetApp’s characterization of the other pending cases, stating that only one originated in the
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`NDCA, one in the Eastern District of Texas, and seven others in this District, including another
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`case that involves this same ’507 Patent. Id.
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`Ordinarily, the Court would find Plaintiff’s argument persuasive. Yet, these circumstances
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`present a slightly different scenario. Whether transferred or not, this case will proceed for all pre-
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`trial purposes in this District subject to the MDL. Thus, judicial economy will be served no matter
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`the disposition of this Motion.
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`Therefore, the Court finds that this factor is neutral.
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`B. The Public Interest Factors
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`i. Administrative Difficulties Flowing from Court Congestion
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`This factor concerns “whether there is an appreciable difference in docket congestion
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`between the two forums.” Parsons v. Chesapeake & Ohio Ry. Co., 375 U.S. 71, 73
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`(1963); Parkervision, Inc. v. Intel Corp., No. 6:20-CV-00108, 2021 WL 401989, at *6 (W.D. Tex.
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`Jan. 26, 2021). This factor considers “[t]he speed with which a case can come to trial and be
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`resolved[.]” In re Genentech, Inc., 566 F.3d at 1347. Additionally, court congestion is considered
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`“the most speculative” factor, and when “relevant factors weigh in favor of transfer and others are
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`neutral, then the speed of the transferee district court should not alone outweigh all those other
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`factors.” Id. The instant case presents a more novel analysis of this factor.
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`This case, once transferred, would be immediately ready for trial. Therefore, any analysis
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`regarding the time to trial post-transfer is increasingly speculative and insufficient to prevent
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`transfer to a more convenient forum. See In re Genentech, 566 F.3d at 1347. Given the nature of
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`the MDL process, the Court finds this factor is moot and gives it no weight.
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`ii. Local Interest in Having Localized Interests Decided at Home
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`Under this factor, the Court must evaluate whether there is a local interest in deciding local
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`issues at home. Volkswagen II, 545 F.3d at 317. “A local interest is demonstrated by a relevant
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`factual connection between the events and the venue.” Word to Info, Inc. v. Facebook, Inc., No.
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`3:14-cv-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015). As the Federal Circuit has
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`instructed, the focus is on where the events forming the basis for infringement occurred, and not
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`the parties’ generalized connections to the forum. In re Juniper Networks, Inc., No. 2021-160, slip
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`op. at 9–10 (Fed. Cir. Sept. 27, 2021).
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`To determine which district has the stronger local interest, the Court looks to where the
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`events forming the basis for infringement occurred. See In re Juniper Networks, Inc., No. 2021-
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`160, slip op. at 9–10 (Fed. Cir. Sept. 27, 2021). NetApp argues that its headquarters are in the
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`NDCA and that ONTAP software was created in the NDCA. Proven counters that NetApp has
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`employees and office space in this District, and that the Accused Products are sold in Texas. Mere
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`sales in Texas, amongst sales throughout the United States, do not create a local interest. See In re
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`Nintendo, 589 F.3d at 1198 (finding the citizens of the transferor venue had “no more or less of a
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`meaningful connection to the case than any other venue” because the products were “sold
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`throughout the United States”). Similarly, NetApp’s generalized presence in the NDCA is
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`insufficient.
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`Instead, the Court turns its focus to where “the accused products were designed, developed,
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`and tested.” In re Apple Inc., 979 F.3d at 1345. All else being equal—generalized presence and
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`national sales carrying no weight—development of the Accused Product in the NDCA with
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`nothing to counter in the WDTX tips the scales. Therefore, the Court finds this factor favors
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`transfer.
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`iii. Familiarity of the Forum with the Law That will Govern the Case
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`Both parties agree that this factor is neutral. The Court agrees.
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`iv. Avoidance of Unnecessary Problems of Conflict of Laws or in the Application of
`Foreign Law
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`Both parties agree that this factor is neutral. The Court agrees.
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`IV. CONCLUSION
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`Having considered the private and public interest factors, the Court’s conclusions for each
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`factor are summarized in the following table:
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`Factor
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`The Court’s Finding
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`Relative ease of access to sources of proof
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`Moot
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`Availability of compulsory process to secure the
`attendance of witnesses
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`Strongly in favor of transfer
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`Cost of attendance for willing witnesses
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`In favor of transfer
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`All other practical problems that make trial of a
`case easy, expeditious and inexpensive
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`Neutral
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`Administrative difficulties flowing from court
`congestion
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`Moot
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`Local interest
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`In favor of transfer
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`Familiarity of the forum with law that will govern
`case
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`Neutral
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`Problems associated with conflict of law
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`Neutral
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`The Court must account for the MDL process and judicial efficiencies it inherently affords.
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`Given that this case will benefit from judicial efficiency regardless of transfer, the Court’s analysis
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`is focused on the events of trial. Alternatively, even if the factors listed as moot weighed against
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`transfer, this Court would still find this case warrants transfer to the NDCA. After review of the
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`evidence and parties’ briefing, it is clearly more convenient to hold trial in the NDCA.
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`Defendant’s Motion is therefore GRANTED. The case is transferred to the NDCA for trial
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`only. Defendant is ORDERED to bring a motion for entry of this order when the case is ready for
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`transfer at the conclusion of the pretrial proceedings.
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`Case 6:20-cv-00369-ADA Document 61 Filed 10/19/21 Page 13 of 13
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`SIGNED this 19th day of October, 2021.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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