Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 1 of 24
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`
` Civil Action No. 6:22-cv-31-ADA
`
`
`
` JURY TRIAL DEMANDED
`
`FLYPSI, INC. (D/B/A FLYP),
`
` Plaintiff,
`
` vs.
`
`GOOGLE LLC,
`
` Defendant.
`
`
`
`
`PLAINTIFF FLYP’S RESPONSE TO GOOGLE’S MOTION TO TRANSFER
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`
`
`

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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 2 of 24
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`
`TABLE OF CONTENTS
`
`
`I. THE FACTS ........................................................................................................................... 1
`A. Flyp is a Texas-based company and has been since its inception. ................................. 1
`B. Google witnesses and documents, and third-party witnesses are in the WDTX or
`within 100 miles of Waco. ......................................................................................................... 3
`II. THE NDCA IS NOT A CLEARLY MORE CONVENIENT FORUM ............................ 5
`A. Google’s self-serving declarations should be afforded little weight. ............................. 6
`B. The private interest factors weigh strongly against transfer. ........................................ 8
`1. The relative ease of access to sources of proof weighs strongly against transfer. .... 8
`2. The cost of attendance of willing witnesses weighs strongly against transfer. ......... 9
`3. The availability of compulsory process to secure the attendance of non-party
`witnesses weighs against transfer. ..................................................................................... 10
`4. Other practical problems that make trial of a case easy, expeditious, and
`inexpensive weigh strongly against transfer. .................................................................... 11
`C. The public interest factors weigh against transfer. ...................................................... 13
`1. The administrative difficulties flowing from court congestion weigh against
`transfer. ................................................................................................................................ 13
`2. The local interest weighs against transfer. ................................................................. 13
`3. The remaining public interest factors are neutral. ................................................... 15
`III. CONCLUSION ................................................................................................................... 15
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 3 of 24
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`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`In re Apple Inc.,
`No. 2022-137, 2022 WL 1676400 (Fed. Cir. May 26, 2022) ..................................................14
`
`Def. Distributed v. Bruck,
`30 F.4th 414 (5th Cir. 2022) ....................................................................................................15
`
`In re Dish Network L.L.C.,
`No. 2021-182, 2021 WL 4911981 (Fed. Cir. Oct. 21, 2021)...................................................10
`
`In re EMC Corp.,
`501 F. App’x 973 (Fed. Cir. 2013) ..........................................................................................12
`
`Fintiv Inc. v. Apple Inc.,
`No. 6:18-CV-00372, 2019 WL 4743678 (W.D. Tex. Sept. 10, 2019) ......................................8
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)............................................................................................9, 13
`
`Good Kaisha IP Bridge 1 v. Broadcom Ltd.,
`No. 2:16-CV-0134-JRGRSP, 2017 WL 750290 (E.D. Tex. Feb. 27, 2017) ...........................11
`
`Gulf Oil Corp. v. Gilbert,
`330 U.S. 501 (1947) .................................................................................................................13
`
`Monterey Rsch., LLC v. Broadcom Corp.,
`No. W-21-CV- 00542-ADA, 2022 WL 526242 (W.D. Tex. Feb. 21, 2022).....................6, 7, 8
`
`Motion Offense, LLC v. Google LLC,
`Case No. 6:21-cv-514, Dkt. 79 (W.D. Tex. Oct. 4, 2022) .......................................................13
`
`N5 Techs., LLC v. Bank of Am., N.A.,
`No. 2:12- CV-685-MHS-RSP, 2014 WL 558762 (E.D. Tex. Feb. 10, 2014) .........................11
`
`Parkervision, Inc. v. Intel Corp.,
`No. 6:20-CV-00108, 2021 WL 401989 (W.D. Tex. Jan. 26, 2021) ........................................13
`
`Parus Holdings Inc. v. LG Elecs. Inc.,
`No. 6:19-CV-00432-ADA, 2020 WL 4905809 (W.D. Tex. Aug. 20, 2020) ...........................10
`
`PersonalWeb Techs., LLC v. NEC Corp. of Am., Inc.,
`No. 6:11-cv-655, 2013 WL 9600333 (E.D. Tex. Mar. 21, 2013) ............................................12
`
`ii
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 4 of 24
`
`
`In re Radmax,
`720 F.3d 285 (5th Cir. 2013) .....................................................................................................8
`
`In re Samsung Elecs. Co.,
`2 F.4th 1371 (Fed. Cir. 2021) ..................................................................................................14
`
`TQP Dev., LLC v. LinkedIn Corp.,
`No. 2:12-CV-191-JRG-RSP, 2013 WL 12247813 (E.D. Tex. Mar. 28, 2013) .......................11
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ...................................................................................................10
`
`WSOU Invs. LLC v. Arista Networks, Inc.,
`No. W-20-CV-01083-ADA, 2021 WL 6015526 (W.D. Tex. Nov. 5, 2021) ...........................11
`
`
`
`
`
`iii
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 5 of 24
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`
`No.
`1
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`Brief Description
`Declaration of
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`TABLE OF EXHIBITS1
`
`
` (SEALED)
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`2
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`3
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`4
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`5
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`6
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`7
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`8
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`9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`Flyp’s Notice of Venue-Related Rule 30(b)(6) Deposition of Google LLC (SEALED)
`
` – Google Corporate Representative on Venue Topics
`
`Deposition of Mr.
`(SEALED)
`
`U.S. Patent No. 9,667,770
`
`U.S. Patent No. 10,051,105
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`U.S. Patent No. 10,334,094
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`U.S. Patent No. 11,012,554
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`U.S. Patent No. 11,218,585
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`NBC 5 Dallas-Fort Worth, “Denton Startup’s ‘Flyp’ App Approaches Two Million
`Downloads”
`
`Rick Pixler – LinkedIn Profile
`
`Murray Kawchuk – LinkedIn Profile
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`Distance between Waco and Bedford (Driving and Straight Line)
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`Distance between Waco and Dallas (Driving and Straight Line)
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`Flyp’s Responses and Objections to Google LLC’s Venue-Related Interrogatories
`(SEALED)
`
` – LinkedIn Profile
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`GOOG-FLYP-00000074 (SEALED)
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`GOOG-FLYP-00000562 (SEALED)
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`GOOG-FLYP-00000637 (SEALED)
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`GOOG-FLYP-00000763 (SEALED)
`
`
`1 The undersigned hereby states that true and correct copies of the exhibits noted here are attached
`to this Response.
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`iv
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 6 of 24
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`No.
`20
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`Brief Description
`GOOG-FLYP-00000987 (SEALED)
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`28
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`29
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`30
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`31
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`32
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`34
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`35
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`36
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`37
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`38
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`39
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`40
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`41
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`GOOG-FLYP-00000991 (SEALED)
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`GOOG-FLYP-00001003 (SEALED)
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`GOOG-FLYP-00001036 (SEALED)
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`GOOG-FLYP-00001060 (SEALED)
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`GOOG-FLYP-00001143 (SEALED)
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`GOOG-FLYP-00001169 (SEALED)
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`GOOG-FLYP-00001235 (SEALED)
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`GOOG-FLYP-00001238 (SEALED)
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`GOOG-FLYP-00001241 (SEALED)
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`GOOG-FLYP-00001244 (SEALED)
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`GOOG-FLYP-00001249 (SEALED)
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`GOOG-FLYP-00001252 (SEALED)
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`GOOG-FLYP-00001271 (SEALED)
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`GOOG-FLYP-00001301 (SEALED)
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`GOOG-FLYP-00001350 (SEALED)
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`Google’s Supplemental Objections and Responses to Flyp’s Venue-Related Requests for
`Production (SEALED)
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`Third Parties Responsive to Request for Production No. 6 (SEALED)
`
`Distance between Waco and Midlothian (Driving and Straight Line)
`
`Dallas Morning News, “Google’s massive $600M data center takes shape in Ellis County
`as tech giant ups Texas presence.”
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`Google in Texas Report (linked at g.co/economicimpact/Texas)
`
`2022-09-04 Email between counsel on venue discovery (SEALED)
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`v
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 7 of 24
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`No.
`42
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`Brief Description
`Google’s Supplemental Objections and Responses
`Interrogatories (SEALED)
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`to Flyp’s Venue-Related
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`43
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`44
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`45
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`46
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`47
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`48
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`49
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`Google Data Centers, Locations (https://www.google.com/about/datacenters/locations/)
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` Declaration in Purdue Rsch. Foundation v. Google LLC (SEALED)
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`Distance between Dallas and San Francisco (Driving and Straight Line)
`
` – LinkedIn Profile
`
` – LinkedIn Profile
`
`LegalMetric District Report, Texas Western District Court
`August 2017–August 2022
`
`in Patent Cases,
`
`LegalMetric District Report, California Northern District Court in Patent Cases,
`August 2017–August 2022
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`
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`vi
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 8 of 24
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`Google’s Motion to transfer this case to the Northern District of California (Dkt. 42) should
`
`be denied. First, it rests on the false premise that Flyp is a “Boston-based company.” Google is
`
`wrong. Flyp was conceived and launched in Dallas and has been based in Texas since its inception.
`
`Flyp closed its satellite Boston office years before it filed this suit. The great majority of Flyp’s
`
`relevant witnesses, and all of its documents, are within 100 miles of the Waco courthouse. Flyp
`
`has no employees or documents in the NDCA, or any connection at all to that venue (or to Boston).
`
`Second, venue discovery and Google’s own documents have revealed
`
`
`
`
`
`. The Court should reject Google’s efforts to downplay
`
`their significance. Third, Google’s evidence for transfer consists largely of unsupported boilerplate
`
`assertions by declarants who failed to perform any real investigation of the facts. As a result,
`
`Google has offered no proof as to the location of its relevant documents.
`
`These facts, taken together with Google’s delay in bringing its Motion, considerations of
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`judicial efficiency, the faster time to disposition in this Court, and Waco’s local interest in deciding
`
`this matter, demonstrate that Google cannot satisfy its elevated burden to clearly demonstrate that
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`the NDCA is clearly more convenient. Rather, this case is properly in the WDTX and should
`
`remain here.
`
`I.
`
`THE FACTS
`
`A.
`
`Flyp is a Texas-based company and has been since its inception.
`
`Flyp has been a Texas company since it was founded in 2013. (Ex. 1 ¶¶ 5–6). Google’s
`
`mischaracterization of Flyp as a “Boston-based company” rests on a stale social media profile that
`
`Flyp has not updated in over six years and ignores all other facts on record. (Id. ¶¶ 16–23). First,
`
`the Complaint identifies Flyp’s principal place of business as 2040 Bedford Road, Suite 100,
`
`Bedford, Texas 76021. (Dkts. 1, 50). Second, every single one of the five Asserted Patents
`1
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 9 of 24
`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 9 of 24
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`identifies Flyp ofDenton or Bedford, Texas as the applicant and assignee (Exs. 4-8). Flyp’s first
`
`Texas office was in Addison, Texas. (Ex. 1 § 7). Between late 2014 and early 2017, Flyp also
`
`maintained an office in Boston. (/d.
`
`8). That Boston office, however, closed in 2017, long before
`
`this suit was filed. (Jd. §§] 9-10). Uponits closure, all documents in Boston were moved to Texas.
`
`(/d.). Aside from one antiquated reference on an old LinkedIn page, Flyp has had no connection
`
`to Boston since that closure five years ago. (/d. § 16).
`
`Eventually, Flyp movedits office from Addison to Denton, Texas and from 2017 to 2019
`
`maintained a single office in Denton. U/d. § 12). In November 2017, Flyp washighlighted by
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`DFW’s NBC5as its commercial application approached two million downloads.” In 2019, Flyp
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`closed its Denton office and relocated to Bedford, Texas, where it maintains its principal place of
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`business to this day. (/d. 1 4§ 13-14). In 2021, Flyp opened a secondoffice in downtown Dallas.
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`(Id. § 15). Both of Flyp’s current offices in Bedford and Dallas are within 100 miles of Waco—
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`89 miles and 87 miles, respectively. (/d. J 38-39: see also Ex. 12, 13).
`
`Flyp currently has 10 employees at its Bedford and Dallas offices, includingp|
`
`PS (Id. 1 9§] 24-28; see also Ex. 14). All of Flyp’s documents and
`
`? Ex. 9 (“Denton Startup’s ‘Flyp’ App Approaches Two Million Downloads.”). Both persons
`identified in the article, Rick Pixler and Murray Kawchuk,are no longer associated with Flyp and
`are potential non-party witnesses within or nearly within 100 miles of the Waco courthouse.
`(Exs. 10, 11).
`3 Ivan Zhidov and Sunir Kochhar,the other inventors on the Asserted Patents, areP|
`. Mr. Zhidov is in Chickasha, Oklahoma, and Mr. Kochhar is in Tucson, Arizona—
`
`neither of which is in either venue. (Ex. 4). Google also identifies two other
`potential Fl
`witnesses, Bob Cleaves and Jeff Stark, both located in Hawaii. (Mot. at 2).
`
`. (Ex. 1 32). Jef
`
`(Id. § 33). Neither Mr. Cleaves nor Mr. Stark
`
`is in either venue, and
`both would
`spend substantial time and incur significant expense in order to
`travel, regardless.
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`

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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 10 of 24
`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 10 of 24
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`evidence about the conception and reduction to practice of its invention, the development and
`
`operation of its commercial application, the advertising and marketing of its application, and its
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`finances are in those offices. d. §] 34—35). Flyp has no connection to the NDCA. (/d. § 43).
`
`B.
`
`Google witnesses and documents, and third-party witnesses are in the WDTX
`or within 100 miles of Waco.
`
`While Google’s Motion emphasizesthe overall size of its presence in the NDCA compared
`
`to its presence in the WDTX (Mot.at 3), Google ignores or downplays key witnesses, documents,
`
`and third-party witnesses in the WDTX or within 100 miles of Waco.
`
`Atleast one former employeeee
`a. (Dkt. 42-2 at 4; see Ex. 15). In deposition, Google identified thai
`ee. (Ex. 3 at 73:19-75:15). Because Mr.|| is a
`
`a G
`
`oogle’s technical declaration also namesPe
`EE. (Dit. 42-2. 99 9-10). Googletriesto
`ee
`ee. (See id.). This argumentfails for two reasons. First, the purported
`(visionrr0:10
`corporate deponent confirmed thatee
`ee. (Ex. 3 at 52:18-53:18). Although other Google productsa
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`

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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 11 of 24
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`is because
`
`. (Id. at 57:1–58:10).
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`Second, Google’s own technical documents belie
`
`. Google’s limited production to date is replete with
`
`. (Exs. 16–
`
`35). One document,
`
` discusses
`
`
`
`
`
`
`
` functionality at the core of Flyp’s infringement assertions here. (Exs. 16–18). An internal
`
`comment notes
`
` (Id.) Another internal document notes that
`
`
`
`
`
` (Ex. 19), which includes
`
` (Ex. 23). In the parlance of the Asserted
`
`Claims, such
`
` are “bridge numbers.” And multiple internal documents discussing
`
`. (Exs. 27–33).
`
`
`
`Given the close ties between
`
`, Google’s WDTX-based employees
`
`have knowledge relevant to Flyp’s case, and discovery from both will be necessary. Mr.
`
`has knowledge about
`
`. (Dkt. 42-2, ¶ 9). Mr.
`
` has knowledge about
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`Furthermore, during discovery, Google identified
`
`.
`
`
`
`
`
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`4
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`

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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 12 of 24
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` (See Exs. 35, 36).5 Google testified that
`
`
`
`. (Ex. 3 at 34:5–35:10). Google’s deponent,
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`however, did not know
`
`. (Id.) As a result, information about
`
` uniquely found within the WDTX.
`
`
`
`
`
`
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`Finally, Google’s Motion fails to mention its $600 million data center in Midlothian, Texas,
`
`which is just 65 miles from Waco (Ex. 38). Google has boasted that its first-ever Texas-based data
`
`center is one of the “engine[s] of the internet,” and that if you live in Texas or the surrounding
`
`areas, your data “will likely be processed in that center.” (Ex. 39). While Google acknowledged
`
`that
`
`has conducted no investigation to
`
`. (Ex. 3 at 105:3-25). Notably, Google cannot dispute that
`
` (Exs. 41, 42), Google
`
`
`
`
`
`
`
`. (Id. at 107:25–109:25).
`
`II.
`
`THE NDCA IS NOT A CLEARLY MORE CONVENIENT FORUM
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`Google fails to carry its elevated burden to clearly demonstrate the transfer is clearly more
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`convenient.6 Google’s self-serving and narrowly focused declarations are the product of minimal
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`investigation and deserve minimal weight. The actual locations of witnesses and sources of proof
`
`in the WDTX weigh strongly against transfer, and the other private and public factors either point
`
`
`
` as being located in either the WDTX or the NDCA.
` or
`5 Google did not identify
`(Ex. 3 at 95:1-18, 115:23-25). Public records indicate that
` is
`,
` and
` is
`. (Exs. 46, 47).
`6 As the Court is familiar with general transfer standards, Flyp will refrain from reciting them here.
`Flyp will discuss legal precedents specific to the parties’ positions as they arise.
`5
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`

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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 13 of 24
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`the same way or are at most neutral. Because the full record establishes that the WDTX will be a
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`far more convenient forum for this case, transfer should be denied.
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`A.
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`Google’s self-serving declarations should be afforded little weight.
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`As the Court is well aware, Google has an elevated burden here to “clearly demonstrate”
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`that the NDCA is “clearly more convenient” that the WDTX. Monterey Rsch., LLC v. Broadcom
`
`Corp., No. W-21-CV- 00542-ADA, 2022 WL 526242, at *2 (W.D. Tex. Feb. 21, 2022). The lion’s
`
`share of Google’s support for its Motion comes from the declarations of Mr.
`
` (Dkt. 42-1)
`
`and Mr.
`
` (Dkt. 42-2). But these declarations deserve little weight as
`
`. (See generally Dkts. 42-1 and 42-2 (
`
`); see also Ex. 3 at 82:20-23).7
`
`Furthermore, both declarants intentionally limited their investigation to
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`. (Dkt. 42-1, ¶ 4, 42-2, ¶ 3; see Ex. 3 at 85:5-8
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`
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`
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`current employees with relevant knowledge, it fails to capture the current location of former or
`
`”)). While this approach may capture the current location of
`
`reassigned employees with historical knowledge prior
`
`. Mr.
`
`—a
`
` (see Dkt. 42-1; Ex. 44)—identified
`
`.
`
`
`
`
`
`
`
`
` declaration is simply too generic to be credible, insofar as it merely parrots
`7 Much of Mr.
`past declarations (in a near cut-and-paste fashion) in stating
`
`. (Compare Dkt. 42-1, with Ex. 44). Such generic allegations
`untethered to the facts here are unhelpful and fail to carry Google’s burden. See Monterey Rsch.,
`2022 WL 526242, at *3 (finding “general allegations unsupported by specific evidence do not tip
`the scales in a transfer analysis”).
`
`
`6
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`

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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 14 of 24
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`. (See Dkt. 42-1,
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`¶ 7; Ex. 3 at 86:13–89:1). Even when pressed, Google’s corporate witness could not provide
`
`
`
`
`
` (Ex. 3 at 86:9-11, 88:12-15). Google has thus presented no proof at all
`
`about the location of employees with historical knowledge of
`
`
`
` as of May 2017—the issuance date of the ’770 Patent, which is also the date of first
`
`infringement and the date of any hypothetical negotiation under Georgia-Pacific.
`
`Google’s technical declaration from Mr.
`
` is likewise neither credible nor helpful to
`
`the Court’s analysis. Mr.
`
` focuses only on
`
`
`
`already unearthed
`
`. Indeed, limited venue discovery has
`
`
`
`. (See Ex. 36 at 6–7;
`
`Ex. 3 at 38:16–41:21). Mr.
`
` also arbitrarily limited the scope of his investigation to
`
` (Dkt. 42-2, ¶ 2), using this
`
`
`
`
`
`. (Id., ¶¶ 9–10). Mr.
`
` self-serving
`
` however, is not
`
`65:11). As discussed above, Google’s document production establishes
`
`
`
`. (Ex. 3 at 63:23–
`
`
`
`.
`
`Both Mr.
`
` and Mr.
`
` declarations are thus not credible and should be given
`
`little weight. See Monterey Rsch., 2022 WL 526242, at *8 (discounting movant’s declaration based
`
`on similar issues). When its declarations are taken with the requisite grain of salt, Google is left
`
`with little other evidence to carry its heighted burden here. On this basis alone, the Motion can be
`
`7
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`

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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 15 of 24
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`denied. See id. (“[T]he lack of credibility behind certain evidence supporting a motion could
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`(easily) stand alone as a basis for finding that a movant has failed to meet its burden.”).
`
`B.
`
`The private interest factors weigh strongly against transfer.
`1.
`
`The relative ease of access to sources of proof weighs strongly against
`transfer.
`
`All of Flyp’s documents are located at its offices in Bedford and Dallas, Texas. (Ex. 1
`
`¶¶ 34, 35). For its part, Google does not identify a single document located in or even near the
`
`NDCA. This factor weighs strongly against transfer.
`
`“In considering the relative ease of access to proof, a court looks to where documentary
`
`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-
`
`CV-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). This factor relates to relative
`
`ease of access, not absolute ease of access. In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013).
`
`Google says only “that as a matter of practice, documents about Google’s products and
`
`services are typically created and maintained by the employees working on those products and
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`services” and thus would be “more easily retrievable from the NDCA.” (Mot. at 3–4 (emphases
`
`added)). These generic allegations do not establish that Google’s relevant documents are actually
`
`stored in the NDCA. See Monterey Rsch., 2022 WL 526242, at *3 (“[G]eneral allegations
`
`unsupported by specific evidence do not tip the scales in a transfer analysis.”).8 Indeed, this Court
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`has found that relevant access to electronic documents is most often tied to the physical location
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`of the servers containing them. Id. at *4.
`
`During venue discovery, Google represented that
`
` (Exs. 41, 42). But critically,
`
`
`
`
`
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`8 Even if the Court were inclined to give credence to these generalized statements, relevant
`documents would also be found with Google’s Austin-based witnesses,
`
` See Section I.B above.
`
`8
`
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 16 of 24
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`. (Ex. 43). In terms of relative ease of access, the
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`Furthermore, Google’s proof is silent on the actual location of its relevant documents. Although it
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`. (Id.; see also Ex. 38).
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`could have done so, Google did not
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`. (Ex. 41; Ex. 3 at 105:3-25
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`The only fact in evidence is that
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`. Google has thus failed to carry its burden to clearly demonstrate that the
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`NDCA is a clearly more convenient forum to access its documents.
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`For its part, Flyp’s electronic documents are stored in computers and servers located at its
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`Bedford and Dallas, Texas offices, which are closer to and far more conveniently accessed from
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`the WDTX. (Ex. 1 ¶¶ 34–35). And all of Flyp’s hard documents are stored in those same offices.
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`Thus, the WDTX has relatively easier access to sources of proof from both parties, whether
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`from Flyp’s offices or Google’s data centers. This factor weighs strongly against transfer.
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`2.
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`The cost of attendance of willing witnesses weighs strongly against
`transfer.
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`The most important factor in the transfer analysis is the convenience of willing witnesses,
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`which includes all potential material and relevant witnesses. In re Genentech, Inc., 566 F.3d 1338,
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`1342 (Fed. Cir. 2009).
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`Here, the WDTX will be more convenient than the NDCA for numerous witnesses located
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`in Texas, including all of Flyp’s witnesses at its Bedford and Dallas offices:
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`also Ex. 14). While these employees can drive to Waco in about 90 minutes, travel to NDCA
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`. (Ex. 1 ¶¶ 24–28; see
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 17 of 24
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`would take much longer. (Ex. 1 ¶¶ 36–48). Indeed, they could reach Waco in the time it would
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`take just to commute to DFW airport, clear security, and merely board a plane—the actual flight
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`and travel time to the NDCA courthouse would add many more hours. (Id. ¶ 46). The Fifth Circuit
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`has made clear that “[w]hen the distance between an existing venue for trial of a matter and a
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`proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses
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`increases in direct relationship to the additional distance to be traveled.” In re Volkswagen AG,
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`371 F.3d 201, 204–05 (5th Cir. 2004). Having to travel 1,500 miles to NDCA (Ex. 45) represents
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`a 15-fold rise in inconvenience versus having to travel less than 100 miles to reach Waco.
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`The WDTX is also more convenient for several key Google employees.
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`currently in Austin and can likewise
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`reach Waco far more conveniently than the NDCA. This factor weighs strongly against transfer.
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`3.
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`The availability of compulsory process to secure the attendance of non-
`party witnesses weighs against transfer.
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`This factor focuses on the presence of non-party witnesses whose attendance may need to
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`be secured by a court order. See In re Dish Network L.L.C., No. 2021-182, 2021 WL 4911981,
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`at *3 (Fed. Cir. Oct. 21, 2021) (finding that a non-party witness is presumed to be unwilling and
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`thus considered under the compulsory process factor).
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`At least one former Google employee with knowledge relevant to
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`. Because he is a non-party witness in the WDTX and within or nearly
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`within 100 miles of the courthouse, this Court can likely secure Mr.
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` attendance. The NDCA
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`cannot.
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`Google points to several prior art witnesses who reside in the NDCA. But as this Court has
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`stated, “[b]ecause prior art witnesses are very unlikely to testify . . . the Court gives their location
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`‘minimal’ weight.” Parus Holdings Inc. v. LG Elecs. Inc., No. 6:19-CV-00432-ADA, 2020 WL
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 18 of 24
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`4905809, at *4 (W.D. Tex. Aug. 20, 2020). Indeed, here, the 17 prior art witnesses and two prior
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`art entities identified by Google cannot all be deposed given the general discovery limitations in
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`this case. Google’s shotgun identification of potential witnesses is thus not credible. At most,
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`Google might depose one or two such witnesses—or it might depose other prior art witnesses not
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`in NDCA. And even if deposed, it remains unclear whether Google would call any such witness
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`at trial. Rampant speculation on Google’s part cannot carry its burden on this factor, and it
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`accordingly weighs against transfer.
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`4.
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`Other practical problems that make trial of a case easy, expeditious,
`and inexpensive weigh strongly against transfer.
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`This factor also weighs strongly against transfer for two reasons.
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`First, Google waited more than six months before filing its Motion. “[L]ate-filed motions
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`to transfer are looked upon with extreme disfavor.” WSOU Invs. LLC v. Arista Networks, Inc.,
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`No. W-20-CV-01083-ADA, 2021 WL 6015526, at *5 (W.D. Tex. Nov. 5, 2021). Flyp filed its
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`Complaint in this Court on January 10, 2022. Rather than promptly moving to transfer, Google
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`proceeded with substantive litigation in the WDTX, moving to dismiss Flyp’s indirect and
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`willfulness allegations on May 2, 2022, which the Court subsequently granted and denied in part.
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`(Dkts. 38, 48). Google then waited another 10 weeks before informing Flyp that it intended to
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`move to transfer and did not file its Motion until July 19, 2022—more than six months after this
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`case was filed. Because they waste both the Court’s and the opposing party’s time and resources,
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`courts have repeatedly found that similar delays weigh against transfer. See TQP Dev., LLC v.
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`LinkedIn Corp., No. 2:12-CV-191-JRG-RSP, 2013 WL 12247813, at *6 (E.D. Tex. Mar. 28, 2013)
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`(fining a five-month delay weighed against transfer); N5 Techs., LLC v. Bank of Am., N.A.,
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`No. 2:12- CV-685-MHS-RSP, 2014 WL 558762, at *4–5 (E.D. Tex. Feb. 10, 2014) (finding a six-
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`month delay weighed against transfer); Good Kaisha IP Bridge 1 v. Broadcom Ltd., No. 2:16-CV-
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 19 of 24
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`0134-JRGRSP, 2017 WL 750290, at *9 (E.D. Tex. Feb. 27, 2017) (finding a six-month delay
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`weighed against transfer).
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`Second, judicial efficiency is served by keeping the case in the WDTX because the Court
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`is already familiar with the Asserted Patents based on co-pending litigation and its prior
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`consideration of issues like those presented in Google’s Markman brief. Indeed, “the existence of
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`duplicative suits involving the same or similar issues may create practical difficulties that will
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`weigh heavily in favor or against transfer.” PersonalWeb Techs., LLC v. NEC Corp. of Am., Inc.,
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`No. 6:11-cv-655, 2013 WL 9600333, at *5 (E.D. Tex. Mar. 21, 2013). Google argues these
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`efficiencies should be discounted because they did not exist at the time suit was filed. (Mot. at 10
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`(citing In re EMC Corp., 501 F. App’x 973, 976 (Fed. Cir. 2013))). But Google’s reliance on EMC
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`for this point is misplaced. The Federal Circuit went on to say that “a district court may properly
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`consider any judicial economy benefits which would have been apparent at the time the suit was
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`filed. For example, we have held that a district court’s experience with a patent in prior litigation
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`and the co-pendency of cases involving the same patent are permissible considerations in ruling
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`on a motion to transfer venue.” Id. (emphasis added). This is true even when the co-pending case
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`is ultimately dismissed. Id. (“Because the dismissal of [co-pending] suits as to the other defendants
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`occurred later, it is not relevant to the venue inquiry. Accordingly, the district court could properly
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`conclude that considerations of judicial economy favored retention of the cases.”). When properly
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`applied to the facts here, EMC weighs against transfer.
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`When Flyp filed its Complaint in this case, co-pending litigation involving the same five
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`patents was already before this Court. (See Case No. 6:21-cv-00642-ADA). Markman briefing was
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`already well underway in that case, including briefing into the term “primary telephone number.”
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`(See id. at Dkts. 24, 26). Thus, by the time Flyp filed this suit, this Court had already received
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 20 of 24
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`briefing and familiarized itself with one of the two major terms that the parties are disputing in this
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`case. (See Dkts. 47, 49). Transfer to the NDCA would negate these judicial efficiencies.
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`For these reasons, this factor strongly weighs against transfer
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`C.
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`The public interest factors weigh against transfer.
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`1.
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`The administrative difficulties flowing from court congestion weigh
`against transfer.
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`This factor considers “whether there is an appreciable difference in docket congestion
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`between the two forums.” Parkervision, Inc. v. Intel Corp., No. 6:20-CV-00108, 2021 WL 401989,
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`at *6 (W.D. Tex. Jan. 26, 2021). Such congestion is measured by the time-to-trial for the transferor
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`court and the transferee court. In re Genentech, 566 F.3d at 1347.
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`As compared to NDCA, “this Court has an established history of both reaching trial faster
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`and of disposing of cases faster.” Motion Offense, LLC v. Google LLC, Case No. 6:21-cv-514,
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`Dkt. 79 at 22-24 (W.D. Tex. Oct. 4, 2022). For patent cases, this Court reaches trial in 27 months
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`and otherwise terminates cases in 18 months. (Ex. 48 at 20, 40). Compared to NDCA’s similar
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`metrics of 46 months to trial and 23 months to termination (Ex. 49 at 2), this Court is 19 months
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`faster to trial and five months faster to termination. Against these plain statistics, Google rests its
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`argument on this Court’s larger patent caseload. But this Court has found that “[d]espite this
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`Court’s larger patent caseload, this Court has consistently avoided congestion and reached trials
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`faster than the NDCA, typically in about two years from case filings.” Motion Offense, Dkt. 79 at
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`23 (collecting cases). These time-to-trial numbers are dispositive, and this factor weighs against
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`transfer.
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`2.
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`The local interest weighs against transfer.
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`The Supreme Court has long held that there is “a local interest in having localized
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`controversies decided at home.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947). Such local
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`Case 6:22-cv-00031-ADA Document 67 Filed 10/28/22 Page 21 of 24
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`interests “are not a fiction.” In re Samsung Elecs. Co., 2 F.4th 1371, 1380 (Fed. Cir. 2021).
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`This case is a Texas-based dispute between two companies that proudly call Texas home.
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`Flyp was founded in Texas, and its two offices are both within 100 miles of the Waco courthouse—
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`localizing the interest in and near Waco. For its part, Google touts that it has “proudly called Texas
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`home for more than a decade with offices in Austin and Dallas, and a data center in Midlothian”—
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