Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 1 of 18
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`Cub Club Investment, LLC,
`Plaintiff,
`
`v.
`Apple Inc.,
`
`Defendant.
`
`
`
`
`
`
`
`Civil Action No.: 6:20-cv-856-ADA-JCM
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`DEFENDANT’S MOTION TO TRANSFER VENUE
`UNDER 28 U.S.C. § 1404(a)
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 2 of 18
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ...............................................................................................................1
`
`BACKGROUND .................................................................................................................1
`
`LEGAL STANDARD ..........................................................................................................3
`
`THE NORTHERN DISTRICT OF CALIFORNIA IS THE CLEARLY MORE
`CONVENIENT VENUE. ....................................................................................................4
`
`A.
`
`B.
`
`The private interest factors overwhelmingly favor transfer. ....................................4
`
`The public interest factors clearly favor transfer. ....................................................7
`
`CONCLUSION ..................................................................................................................10
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`
`
`
`
`i
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 3 of 18
`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`Page(s)
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010)..................................................................................................7
`
`In re Adobe Inc.,
`823 F. App’x 929 (Fed. Cir. 2020) ..........................................................................................10
`
`In re Apple Inc.,
`818 F. App’x 1001 (Fed. Cir. 2020) ..........................................................................................4
`
`Atl. Marine Const. Co. v. U.S. Dist. Ct.,
`571 U.S. 49 (2013) .....................................................................................................................4
`
`Auto-Dril, Inc. v. Nat’l Oilwell Varco, L.P.,
`No. 6:15-CV-00091, 2016 WL 6909479 (W.D. Tex. Jan. 28, 2016) ....................................4, 5
`
`Carruth v. Michot,
`No. A-15-CA-189-SS, 2015 WL 6506550 (W.D. Tex. Oct. 26, 2015) .....................................5
`
`DataQuill, Ltd. v. Apple Inc.,
`No. A-13-CA-706-SS, 2014 WL 2722201 (W.D. Tex. June 13, 2014) ..........................8, 9, 10
`
`Gemalto S.A. v. CPI Card Grp. Inc.,
`No. CV A-15-CA-0910-LY, 2015 WL 10818740 (W.D. Tex. Dec. 16, 2015) .........................7
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................................10
`
`Gutierrez v. Collins,
`583 S.W.2d 312 (Tex. 1979) ......................................................................................................9
`
`In re Hoffmann-LaRoche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)..................................................................................................8
`
`In re Horseshoe Ent.,
`337 F.3d 429 (5th Cir. 2003) .....................................................................................................3
`
`Longview Energy Co. v. Huff Energy Fund LP,
`533 S.W.3d 866 (Tex. 2017) ......................................................................................................9
`
`Moskowitz Fam. LLC. v. Globus Med., Inc.,
`No. 6:19-CV-00672-ADA, 2020 WL 4577710 (W.D. Tex. July 2, 2020) ................................8
`
`
`
`ii
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 4 of 18
`
`In re Nitro Fluids L.L.C.,
`978 F.3d 1308 (Fed. Cir. 2020)................................................................................................10
`
`Parus Holdings Inc. v. LG Elecs. Inc.,
`No. 6:19-cv-00432, 2020 WL 4905809 (W.D. Tex. Aug. 20, 2020) ........................................3
`
`Promote Innovation LLC v. Schering Corp.,
`No. 2:10-CV-248-TJW, 2011 WL 665817 (E.D. Tex. Feb. 14, 2011) ......................................8
`
`In re Radmax, Ltd.,
`720 F.3d 285 (5th Cir. 2013) .....................................................................................................4
`
`Solas OLED Ltd. v. Apple Inc.,
`No. 6:19-cv-00537, 2020 WL 3440956 (W.D. Tex. June 23, 2020) .........................................4
`
`Spent v. Geolfos,
`No. SA-11-CA-306-XR, 2011 WL 13238556 (W.D. Tex. July 19, 2011) ................................6
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)..................................................................................................9
`
`TV-3, Inc. v. Royal Ins. Co. of Am.,
`28 F. Supp. 2d 407 (E.D. Tex. Oct. 30, 1998) ...........................................................................9
`
`In re Verizon Bus. Network Servs. Inc.,
`635 F.3d 559 (Fed. Cir. 2011)....................................................................................................4
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .....................................................................................................3
`
`In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) ........................................ passim
`
`Weatherford Technology Holdings, LLC v. Tesco Corporation,
`No. 2:17-cv-00456, 2018 WL 4620636 (E.D. Tex. May 22, 2018) ..........................................4
`
`Wet Sounds, Inc. v. Audio Formz, LLC,
`No. A-17-CV-141-LY, 2017 WL 4547916 (W.D. Tex. Oct. 11, 2017), rep. &
`rec. adopted, No. 1:17-CV-141-LY, 2018 WL 1219248 (W.D. Tex. Jan. 22,
`2018) ......................................................................................................................................6, 7
`
`Wireless Recognition Techs. LLC v. A9.com, Inc.,
`Nos. 2:10-cv-364, -365, -577, -578, 2012 WL 506669 (E.D. Tex. Feb. 15,
`2012) ..........................................................................................................................................8
`
`iii
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 5 of 18
`
`STATUTES
`
`28 U.S.C.
`§ 1391(b)(1)-(2) .........................................................................................................................4
`§ 1400(a) ................................................................................................................................4, 9
`§ 1404(a) ............................................................................................................................3, 4, 9
`
`TREATISES
`
`Restatement (Second) of Conflicts of Law § 145 (1971) ...............................................................9
`
`Restatement (Second) of Conflicts of Law § 6 (1971) ....................................................................9
`
`
`
`
`
`iv
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 6 of 18
`
`I.
`
`INTRODUCTION
`
`When a Houston-area company pursues business in Northern California, then chooses to
`
`sue a company from Northern California, and when the vast majority of witnesses and evidence
`
`are located in Northern California, the suit should be resolved in Northern California. It makes
`
`little sense to try such a case in a judicial district that lacks any connection to the facts, claims,
`
`defenses, or witnesses. Yet this is the situation Plaintiff Cub Club Investment, LLC, has created.
`
`Although based near Houston, Cub Club chose to sue California-based Apple Inc. hundreds of
`
`miles away in Waco, despite this District’s lack of any discernible connection to the case.
`
`Apple therefore moves to transfer this action to the Northern District of California. A
`
`majority of party and third-party witnesses resides in Northern California. Most of the relevant
`
`records are in Northern California. The California court has a strong interest in the case, since
`
`Cub Club’s allegations center around activities taking place in that District. In contrast, not a
`
`single party or witness is based in Waco or anywhere else in the Western District of Texas. To
`
`be sure, Apple has a campus in Austin, but nothing relevant to this case happened there or
`
`involves anyone who works there—and Cub Club does not allege otherwise. Not a single event
`
`alleged in the complaint occurred in the Western District of Texas. Forcing witnesses to travel
`
`here would cause unnecessary hardship, and because the Court cannot compel California-based
`
`third-party witnesses to testify here at trial, proceeding in this district would deprive the jury of
`
`seeing and hearing from witnesses whom Cub Club itself alleges played central roles. The
`
`Northern District of California is the clearly more convenient venue, and the case should be
`
`transferred.
`
`II.
`
`BACKGROUND
`
`This is a copyright infringement case about emoji. Emoji are small graphical images
`
`commonly used in text-messaging and similar applications, sometimes depicting a representation
`
`
`
`1
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 7 of 18
`
`of a human body part, like a hand making a thumbs-up signal. To ensure that text and emoji sent
`
`from one type of device are correctly displayed on another type of device, technology companies
`
`follow international software standards. The Unicode Consortium, a Silicon Valley-based non-
`
`profit corporation, develops and promotes one such standard: the Unicode Standard. That
`
`standard specifies the visual representation of text and emoji in software used for digital
`
`communications. (Declaration of Gabriel S. Gross ¶ 2 & Ex. 1.) Apple, like other technology
`
`companies, is a member of the Unicode Consortium and participates on the Unicode Technical
`
`Committee (“UTC”), which develops and maintains the Unicode standard. (Id. ¶ 3 & Ex. 2a–c.)
`
`Apple uses the Unicode Standard to determine what emoji to offer on its platform, but Apple
`
`designs the actual emoji images itself. (Declaration of Mark Rollins ¶¶ 6, 11.)
`
`Cub Club, based in League City, Texas, claims intellectual property rights in the idea of
`
`emoji with different skin tones. (Compl. ¶¶ 2, 7). Cub Club created an application called
`
`iDiversicons that provides users with a particular set of emoji, including some with different skin
`
`tones. (Id. ¶¶ 7–8.). Cub Club’s founder, Katrina Parrott, alleges she promoted the iDiversicons
`
`application for use in the Unicode Standard at UTC meetings in Redmond, Washington (meeting
`
`140), San Jose, California (meeting 139), Sunnyvale, California (meeting 141), and Mountain
`
`View, California (meeting 142). (Id. ¶¶ 11–13, 26, 43; Gross Dec. ¶ 4 & Ex. 3). Cub Club
`
`alleges that Mrs. Parrott discussed with Apple a potential partnership, both at these meetings and
`
`separately with Apple employees in Cupertino. (Compl. ¶¶ 11, 20–44; Rollins Dec. ¶ 11).
`
`According to Cub Club, Apple declined to pursue a partnership and instead chose to “use its own
`
`human interface designers” to develop emoji with skin-tone variation. (Compl. ¶¶ 26–42.)
`
`Cub Club asserts it owns copyrights in the idea of applying five skin tones to emoji, and
`
`that it has trade dress rights in a keyboard interface used to apply those skin tones to emoji. (Id.
`
`2
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 8 of 18
`
`¶¶ 9, 17–19.). Cub Club claims that Apple infringes Cub Club’s copyrights and trade dress and
`
`violates its common law rights. (Compl. Counts I–V.) As detailed in Apple’s forthcoming
`
`motion to dismiss, Cub Club’s complaint is premised on the legally erroneous notions that
`
`copyright protection extends to mere ideas and that trade dress protection extends to functional
`
`product features. If the Court grants this motion and transfers the case, however, it will not need
`
`to reach the motion to dismiss, which would be resolved by the transferee court.
`
`III. LEGAL STANDARD
`
`Whether to transfer venue is a preliminary issue that must be addressed at the outset of a
`
`federal action, and must take “top priority in the handling of this case.” In re Horseshoe Ent.,
`
`337 F.3d 429, 433 (5th Cir. 2003). The Court may transfer an action to any district or division
`
`where it might have been brought if that transfer serves “the convenience of parties and
`
`witnesses” and “the interest of justice.” 28 U.S.C. § 1404(a). In evaluating convenience, the
`
`Court weighs a series of private and public interest factors, discussed in detail below. In re
`
`Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). If the proposed transferee
`
`forum is “clearly more convenient,” then there is “good cause and the district court should
`
`therefore grant the transfer.” In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008)
`
`(en banc) (“Volkswagen II”). The “plaintiff’s choice of venue is not an independent factor in the
`
`venue transfer analysis”; rather, the good-cause requirement reflects the appropriate deference to
`
`that choice. Parus Holdings Inc. v. LG Elecs. Inc., No. 6:19-cv-00432, 2020 WL 4905809, at *2
`
`(W.D. Tex. Aug. 20, 2020); see also Volkswagen II, 545 F.3d at 314–15. In assessing a venue
`
`transfer motion, the Court does not presume the truth of the non-moving party’s allegations, but
`
`instead considers any venue-related evidence and resolves whether it favors or disfavors
`
`3
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 9 of 18
`
`transfer.1 See In re Verizon Bus. Network Servs. Inc., 635 F.3d 559, 561 (Fed. Cir. 2011) (“A
`
`motion to transfer under § 1404(a) calls upon the trial court to weigh a number of case-specific
`
`factors based on the individualized facts on record.”).
`
`IV.
`
`THE NORTHERN DISTRICT OF CALIFORNIA IS THE CLEARLY MORE
`CONVENIENT VENUE.
`
`That this action could have been brought in the Northern District of California cannot
`
`reasonably be disputed. Apple’s headquarters are in the Northern District of California, and the
`
`relevant events took place there. 28 U.S.C. §§ 1391(b)(1)–(2), 1400(a). (Rollins Dec. ¶ 3, 5–
`
`11.) Not surprisingly, then, three private interest factors weigh strongly in favor of transfer, with
`
`the “practical problems” factor neutral. And although the “public-interest factors . . . rarely
`
`defeat a transfer motion,” those factors also support transfer here. Atl. Marine Const. Co. v. U.S.
`
`Dist. Ct., 571 U.S. 49, 64 (2013). In short, “[t]he facts and circumstances of this case are wholly
`
`grounded in the transferee forum . . . , and this case has no connection to” the Western District of
`
`Texas. In re Radmax, Ltd., 720 F.3d 285, 290 (5th Cir. 2013).
`
`A.
`
`The private interest factors overwhelmingly favor transfer.
`
`Costs for willing witnesses. This factor strongly favors transfer. Witness convenience
`
`“is probably the single most important factor in transfer analysis.” Auto-Dril, Inc. v. Nat’l
`
`Oilwell Varco, L.P., No. 6:15-CV-00091, 2016 WL 6909479, at *7 (W.D. Tex. Jan. 28, 2016)
`
`(emphasis in original, citation omitted). All of the likely witnesses with knowledge of Apple’s
`
`development of emoji with skin-tone variation are in the Northern District of California, except
`
`1 Although this Court has previously relied on Weatherford Technology Holdings, LLC v. Tesco
`Corporation, No. 2:17-cv-00456, 2018 WL 4620636 (E.D. Tex. May 22, 2018), for the
`proposition that the court “must draw all reasonable inferences and resolve all factual conflicts in
`favor of the non-moving party,” Solas OLED Ltd. v. Apple Inc., No. 6:19-cv-00537, 2020 WL
`3440956 (W.D. Tex. June 23, 2020), that reliance has been appropriately “question[ed],”
`especially given “the elevated ‘clearly more convenient’ standard that the movant must meet.”
`In re Apple Inc., 818 F. App’x 1001, 1003 (Fed. Cir. 2020).
`
`4
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 10 of 18
`
`for one. The Apple teams that work directly with emoji are based at Apple’s Cupertino campus.
`
`(Rollins Dec. ¶ 5.) All likely Apple employee witnesses on these teams reside and work in the
`
`Northern District of California save for the one exception, Peter Edberg, who lives in Oregon.
`
`(Id. ¶ 10–11.) Not one likely witness resides or works in the Western District of Texas, nor does
`
`their work bring them to Apple’s Austin campus. (Id. ¶¶ 5–13.) None of Apple’s emoji-related
`
`work takes place, or ever has taken place, in Austin. (Id.) This Court must therefore consider
`
`the burden these witnesses will have to bear, because the burden of testifying at trial is borne by
`
`individuals, not just by the companies that employ them. See Volkswagen II, 545 F.3d at 317.
`
`Similarly, the third parties most likely to testify in this action reside in the Northern
`
`District of California, with all other known third-party witnesses on the West Coast as well. (See
`
`infra at 7.) To take just one example, former Apple employee Celia Vigil, whom Cub Club
`
`alleges met with Mrs. Parrott regarding Cub Club’s emoji (Compl. ¶¶ 27–28, 30, 33–35, 42),
`
`resides in Los Altos, California. (Rollins Dec. ¶ 11.) Trying this case in the Western District of
`
`Texas would require almost every witness Apple is aware of, including all third-party witnesses,
`
`to travel from the West Coast. The only exception is Cub Club itself (which appears to have
`
`only one employee, its founder Mrs. Parrott). But even Cub Club is not based in this District and
`
`will have to travel a significant distance regardless.
`
`Relative ease of access to sources of proof. This factor also weighs strongly in favor of
`
`transfer. Apple’s documents are likely to be the main sources of proof in this case, used by both
`
`Cub Club to try to prove its claims and Apple to prove its defenses. See Carruth v. Michot, No.
`
`A-15-CA-189-SS, 2015 WL 6506550, at *9 (W.D. Tex. Oct. 26, 2015) (in a copyright case,
`
`finding that, because “the allegedly wrongful acts took place in Louisiana,” “it is more likely
`
`relevant physical evidence will be located in Louisiana than Texas, and thus this factor weighs in
`
`5
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 11 of 18
`
`favor of transfer”); Spent v. Geolfos, No. SA-11-CA-306-XR, 2011 WL 13238556, at *4 (W.D.
`
`Tex. July 19, 2011). And the documents concerning Apple’s development, design, and
`
`implementation of emoji with skin-tone variation were generated and are stored in the Northern
`
`District of California, where the teams responsible for emoji-related work are based. (Rollins
`
`Dec. ¶ 5.) So too are Apple’s financial documents, which may be relevant to Cub Club’s claims
`
`for damages. (Id. ¶¶ 3, 12.) Apple’s documents will be collected and produced from the
`
`Northern District of California, not from this District. (Id. ¶¶ 5, 12.)
`
`That documents may be stored electronically does not undermine the import of their
`
`location. “[T]he Fifth Circuit [has] clarified that despite technological advances that make the
`
`physical location of documents less significant, the location of sources of proof remains a
`
`‘meaningful factor in the analysis.’” Wet Sounds, Inc. v. Audio Formz, LLC, No. A-17-CV-141-
`
`LY, 2017 WL 4547916, at *2 (W.D. Tex. Oct. 11, 2017), rep. & rec. adopted, No. 1:17-CV-141-
`
`LY, 2018 WL 1219248 (W.D. Tex. Jan. 22, 2018) (quoting Volkswagen II, 545 F.3d at 315).
`
`The Unicode Consortium, a third party which Cub Club discusses at length (see, e.g.,
`
`Compl. ¶¶ 11–14, 16, 20–22, 26, 32, 37, 43), also is located in the Northern District of
`
`California. Unicode is likely to have information relevant to this dispute, including (among other
`
`things) information about the intellectual property policies applicable to its members, which may
`
`be relevant to Apple’s defenses. Unicode is headquartered in Mountain View, California, and
`
`three of the four Unicode meetings Cub Club alleges Mrs. Parrott attended took place in the
`
`Northern District of California. (See Gross Dec. ¶¶ 4–5 & Exs. 3–4; Compl. ¶ 13.) A plurality
`
`of voting Unicode members are based in the Northern District of California (with none based in
`
`this District), (Gross Dec. ¶ 3 & Ex. 2c), so any relevant documents related to Unicode meetings
`
`held by third parties other than Unicode itself are most likely also located in that forum.
`
`6
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 12 of 18
`
`Whatever relevant documents Cub Club has are likely to be less voluminous, especially
`
`compared to the volume of Apple documents. And regardless, little to no weight should be put
`
`on Cub Club’s presence in a different Texas district. Cf. Volkswagen II, 545 F.3d at 318.
`
`Availability of compulsory process. This important factor also strongly favors transfer.
`
`The Complaint identifies no third parties in Texas whose attendance could be secured by a
`
`subpoena issued from this District, and Apple is aware of none. Meanwhile, several likely third
`
`parties reside within the subpoena power of the Northern District of California. See Volkswagen
`
`II, 545 F.3d at 316–17 (when “a proper venue that does enjoy absolute subpoena power . . . is
`
`available,” that fact favors transfer); Gemalto S.A. v. CPI Card Grp. Inc., No. CV A-15-CA-
`
`0910-LY, 2015 WL 10818740, at *4 (W.D. Tex. Dec. 16, 2015). At least four likely third-party
`
`witnesses reside in the Northern District of California: (1) Ms. Vigil, (2) Shervin Afshar, who
`
`worked with Mrs. Parrott on the UTC submission discussed in the Complaint; and both (3) Chris
`
`Wilson and (4) Matt Evans, former Apple employees who worked on the team that designs
`
`emoji. (Gross Dec. ¶¶ 6–11 & Exs. 5–7; Rollins Dec. ¶¶ 9–11; Compl. ¶¶ 11, 27–42 & n.1.) All
`
`four would be subject to compulsory process in the Northern District of California but not here.
`
`B.
`
`The public interest factors clearly favor transfer.
`
`Local interest. The local interest factor strongly favors transfer as well. “Transfer is
`
`appropriate where none of the operative facts occurred in the division and where the division had
`
`no particular local interest in the outcome of the case.” Wet Sounds, 2017 WL 4547916, at *4.
`
`“This factor most notably regards not merely the parties’ significant connections to each forum
`
`writ large, but rather the ‘significant connections between a particular venue and the events that
`
`gave rise to a suit.’” In re Apple Inc., --- F.3d ---, 2020 WL 6554063, at *9 (Fed. Cir. 2020)
`
`(quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010)).
`
`7
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 13 of 18
`
`The Northern District of California has a strong local interest in this matter. It is the
`
`location of Apple’s headquarters and the site of the key events, including the design of Apple’s
`
`allegedly infringing emoji. (Rollins Dec. ¶¶ 3, 5–9); see, e.g., Wireless Recognition Techs. LLC
`
`v. A9.com, Inc., Nos. 2:10-cv-364, -365, -577, -578, 2012 WL 506669, at *6 (E.D. Tex. Feb. 15,
`
`2012) (finding this factor favors transfer when defendants are headquartered, develop products at
`
`issue, and employ many people in transferee venue). And Cub Club’s claims—that Apple
`
`willfully infringed its designs (Compl. ¶ 66)—“‘call[] into question the work and reputation’ of
`
`residents of the Northern District of California, not the Western District of Texas.” DataQuill,
`
`Ltd. v. Apple Inc., No. A-13-CA-706-SS, 2014 WL 2722201, at *4 (W.D. Tex. June 13, 2014)
`
`(quoting In re Hoffmann-LaRoche Inc., 587 F.3d 1333, 1336 (Fed. Cir. 2009)).
`
`Unicode’s Northern California location further bolsters the localized interest there, given
`
`Unicode’s role in creating the standard for emoji-skin tone modifiers. See Moskowitz Fam. LLC.
`
`v. Globus Med., Inc., No. 6:19-CV-00672-ADA, 2020 WL 4577710, at *6 (W.D. Tex. July 2,
`
`2020) (noting a “third-party supplier” “create[s] a local interest” in the district in which it
`
`resides). And three of the four UTC meetings Mrs. Parrott allegedly attended took place in
`
`Northern California—as have most UTC meetings. (Compl. ¶ 13; Gross Dec. ¶ 4 & Ex. 3.)
`
`This District has no plausible localized interest in this action. See Volkswagen II, 545
`
`F.3d at 317–18. Cub Club itself is located in a different district—the Southern District of
`
`Texas—which does not give rise to a localized interest here. See, e.g., Promote Innovation LLC
`
`v. Schering Corp., No. 2:10-CV-248-TJW, 2011 WL 665817, at *4 (E.D. Tex. Feb. 14, 2011).
`
`That Apple has an Austin campus does not change the analysis. The “mere presence” of
`
`a party’s personnel or facilities in a venue, when those personnel or facilities have nothing to do
`
`with the case, does not create a local interest. DataQuill, Ltd., 2014 WL 2722201, at *4.
`
`8
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 14 of 18
`
`Relying on a party’s mere presence in a district “improperly conflate[s]” the test for venue under
`
`Section 1400 with the transfer factors under Section 1404. In re Apple, 2020 WL 6554063, at
`
`*9–10. None of the witnesses, evidence, claims, or defenses in this case has any connection to
`
`Apple’s Austin campus. (Rollins Dec. ¶ 5–13.) As this Court has correctly found before, based
`
`on highly similar facts, “[t]here is no dispute Apple has a presence in this district, but that
`
`presence is unrelated to this litigation. The egg is here, but the yolk is not. The Northern District
`
`of California is clearly the more convenient venue.” DataQuill, Ltd., 2014 WL 2722201, at *5.
`
`Familiarity with governing law and conflicts of law. This factor is at worst neutral, or
`
`slightly favors transfer. Both the Northern District of California and this Court are familiar with
`
`and will apply the relevant federal law, including the Copyright Act and the Lanham Act. See In
`
`re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 2008).
`
`Although Cub Club has asserted common law claims for unfair competition,
`
`misappropriation, and unjust enrichment (Compl. Counts III–V), it is unlikely that any state law
`
`will apply because those claims are coextensive with its trade dress claim and thus should be
`
`dismissed. (See Mot. to Dismiss at 19–20.) To the extent they are not coextensive, those claims
`
`are preempted by the Copyright Act. (See id. at 20.) Even if Cub Club’s state law claims were
`
`to go forward, Texas’s conflict of law rules, which look to the “most significant relationship”
`
`implicated in a case, counsel for applying California law because this case involves a suit against
`
`a California company, events that occurred in California, and emoji designed in California. See
`
`Longview Energy Co. v. Huff Energy Fund LP, 533 S.W.3d 866, 872 (Tex. 2017); Gutierrez v.
`
`Collins, 583 S.W.2d 312, 318–19 (Tex. 1979) (citing Restatement (Second) of Conflicts of Law
`
`§§ 6, 145 (1971)). And a Northern District of California court will be more familiar with
`
`California law than courts in this District. See, e.g., TV-3, Inc. v. Royal Ins. Co. of Am., 28 F.
`
`9
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 15 of 18
`
`Supp. 2d 407, 413–14 (E.D. Tex. Oct. 30, 1998) (“Where a controversy is to be determined by
`
`state law, a court should consider the desirability of having a case decided by a court in a state
`
`whose substantive law governs the action.”).
`
`Administrative difficulties. This factor is at worst neutral, or slightly favors transfer.
`
`This factor looks to the relative docket congestion of the two venues, not merely the expected
`
`time to trial. In re Nitro Fluids L.L.C., 978 F.3d 1308, 1312 (Fed. Cir. 2020); see also In re
`
`Adobe Inc., 823 F. App’x 929, 932 (Fed. Cir. 2020); DataQuill, Ltd., 2014 WL 2722201, at *4.
`
`It is “the most speculative” factor in the transfer analysis because statistics do “not always tell
`
`the whole story.” In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009).
`
`That is the case here. The Western District of Texas and the Northern District of
`
`California “have historically had comparable times to trial for civil cases (25.9 months for
`
`NDCA versus 25.3 months for WDTX).” In re Apple, 2020 WL 6554063, at *8. The Western
`
`District of Texas currently has a bottleneck of new cases in Waco, whereas the Northern District
`
`of California has maintained a consistent timeline for cases, even with its higher overall
`
`caseload. (Compare Gross Dec. ¶ 9 & Ex. 8a (97% increase in Waco Division’s civil case filings
`
`from 2017 to 2019), with Gross Dec. ¶ 9 & Ex. 8b (13% increase in Northern District of
`
`California’s civil case filings from 2017 to 2019)). Given the similarity in time-to-trial for the
`
`two Districts historically, and the recent increase in filings in this forum, this factor is at worst
`
`neutral and at best slightly favors transfer.
`
`V.
`
`CONCLUSION
`
`Apple respectfully requests that the Court transfer this case to the Northern District of
`
`California.
`
`
`
`10
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 16 of 18
`
`Dated: November 24, 2020
`
`
`Andrew M. Gass
`Admitted Pro Hac Vice
`andrew.gass@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, California 94111-6538
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
`
`Gabriel S. Gross
`Admitted Pro Hac Vice
`gabe.gross@lw.com
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, California 94025
`Telephone: (650) 328-4600
`Facsimile: (650) 463-2600
`
`Respectfully submitted,
`
`/s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`State Bar No. 00796136
`pamstutz@scottdoug.com
`Sameer Hashmi
`State Bar No. 24101877
`shashmi@scottdoug.com
`SCOTT DOUGLASS & MCCONNICO LLP
`303 Colorado Street, Suite 2400
`Austin, Texas 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
`
`Elana Nightingale Dawson
`Admitted Pro Hac Vice
`elana.nightingaledawson@lw.com
`Carolyn M. Homer
`Admitted to practice in W.D. Tex.
`carolyn.homer@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW, Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`
`
`Attorneys for Defendant Apple Inc.
`
`
`
`
`
`
`
`
`
`11
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 17 of 18
`
`CERTIFICATE OF CONFERENCE
`
`I certify that counsel for Defendant Apple Inc. conferred with counsel for Plaintiff Cub
`
`Club Investment, LLC via telephone on November 20, 2020 regarding the relief sought in the
`
`foregoing Motion to Transfer Venue. Cub Club’s counsel advised that Cub Club opposes the
`
`relief sought in this Motion to Transfer Venue.
`
`
`
`/s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`
`12
`
`

`

`Case 6:20-cv-00856-ADA-JCM Document 21 Filed 11/24/20 Page 18 of 18
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 24, 2020, a true and correct copy of the foregoing
`
`document was electronically filed with the Clerk of Court using the CM/ECF system,
`
`which will send notifications of such filing to all counsel of record.
`
`
`
`
`
`/s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`
`13
`
`