Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
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`REPLY IN SUPPORT OF DEFENDANT GOOGLE LLC’S
`OPPOSED MOTION TO TRANSFER
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`Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 2 of 8
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`Flyp cannot meaningfully dispute that the material witnesses and evidence in this case are
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`concentrated in the NDCA, not this district. Instead, Flyp points to a number of individuals in
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`districts surrounding this one, without providing any credible explanation as to how these
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`individuals might have relevant knowledge. The convenience of these disconnected individuals is
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`immaterial to the transfer inquiry, which focuses on the balance of convenience for likely witnesses
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`and likely sources of proof, not the mere counting of bodies and offices in various locations.
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`A.
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`The Private Interests Strongly Favor Transfer
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`The Relative Ease of Access to Sources of Proof Favors Transfer. As this Court is aware,
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`the locations of document custodians and where documents are created and maintained must be
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`considered in the transfer analysis. LoganTree v. Apple Inc., No. 6:21-cv-00397-ADA, 2022 WL
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`1491097, at *2 (W.D. Tex. May 11, 2022). It is indisputable that most evidence in this case will
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`come from Google as the “accused infringer.” In re Google, No. 2021-171, 2021 WL 4592280, at
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`*6 (Fed. Cir. Oct. 6, 2021). Google’s custodians in NDCA, not this district, created and maintained
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`documents likely relevant to this case. Mot. at 6–7. And, Flyp ignores that Google identified
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`. Dkt. 42-2 ¶ 8. Flyp further fails to rebut
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`the significance of relevant evidence held in NDCA by third-parties
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` (Mot. at 7, Dkt. 42-2
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`¶ 8), RingCentral, and Cisco (Mot. at 9, Dkt. 43 ¶¶ 28–36).
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`In fact, Flyp does not identify any sources of proof within WDTX, and instead points to its
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`documents in NDTX. Opp. at 8–9. But the Federal Circuit “has made clear that under this very
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`same fact pattern, this factor weighs in favor of transfer.” Motion Offense v. Google LLC, No.
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`6:21-cv-00514-ADA, 2022 WL 5027730, at *7 (W.D. Tex. Oct. 4, 2022) (“Plaintiff’s evidence in
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`Texas lies beyond [] WDTX, as is the case here for Motion Offense’s evidence in Longview and
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`Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 3 of 8
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`Frisco.”).1 This factor thus favors transfer.
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`The Cost of Attendance for Willing Witnesses Favors Transfer. Google identified five
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`willing witnesses with relevant, material knowledge in NDCA, and one much closer to NDCA in
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`Seattle, Washington. Mot. at 3, 7. Flyp does not dispute these witnesses’ relevance and materiality.
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`In contrast, Flyp identified just one relevant witness in WDTX,
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`Flyp’s effort to discredit Google’s two declarants fails. Google’s declarants carefully and
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`transparently established the basis of their knowledge, and personally interviewed the employees
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`relied on in Google’s motion. Indeed, Google declarant
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`declarant,
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`. Opp. Ex. 3 at 18. Google’s other
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` Dkt. 42-1. The
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` Declarations are thus credible, and the circumstances
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`here are readily distinguishable from Monterey Research v. Broadcom, No. 6:21-cv-00542-ADA,
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`2022 WL 526242 (W.D. Tex. Feb. 21, 2022). Id. at *6 (“Mr. Phillips did not meaningfully speak
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`with anyone other than his paralegal Ms. Manke or Broadcom’s outside counsel . . . .”).
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`Though Flyp’s Opposition attempts to cast an improperly wide relevance net, the cost of
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`attendance still strongly favors transfer. VoIP-Pal.com v. Google LLC, No. 6:20-cv-00269-ADA,
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`2022 WL 4546553, at *5 (W.D. Tex. Sept. 28, 2022). During venue discovery, Google produced
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`a list of all employees reporting to
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`,
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`. Ex.
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`42; see also Dkt. 42-2 ¶¶ 7–10 (detailing Google declarant’s
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`The most recent count shows
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` employees from Mr.
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`’s team residing in NDCA, and
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`1 Though Flyp suggests that Google may have some documents
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`, any such
` are similarly irrelevant to the transfer analysis. Flyp does not suggest anything uniquely
`important or relevant about these possible
`.
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`).
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`Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 4 of 8
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`residing in WDTX. Id. Flyp has not shown that those
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`—are “in similar positions” to the potential witnesses identified in the
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` Declarations, who are actually responsible for the functionality at issue. LoganTree, 2022
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`WL 1491097, at *7. Flyp certainly does not explain why Mr.
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` is more important or relevant
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`than the
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` others on his team who reside in NDCA, or why Mr.
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` is more material than
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`his
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` fellow team members in NDCA. Ex. 42. The same defect applies to Flyp’s identification of
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`Google employees
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`. Opp. at 5, 7. Google established that
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`, not Ms.
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`, are most knowledgeable about
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` Opp. at 5; Mot. at 3, 7; Dkt. 42-1 ¶¶ 5–9.
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`And Flyp cannot articulate why Mr.
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`, might be more knowledgeable than the
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` members of Mr.
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`’s
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`current team residing in NDCA. Ex. 42. Google has made “a far more compelling showing on this
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`factor” than Flyp. In re Netflix, No. 2022-110, 2022 WL 167470, at *4 (Fed. Cir. Jan. 19, 2022).
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`Importantly, the
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` declaration relied upon by Flyp is deficient on its face.
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`Though Flyp cites
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` in asking the Court to weigh “
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`” Opp. at 9 (citing
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` Decl.), the declaration (and Flyp’s
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`Opposition) simply
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`. This failure effectively precludes the Court from weighing
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`these
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` individuals in the transfer analysis. See MemoryWeb v. Samsung Elecs., No. 6:21-cv-
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`00411-ADA, 2022 WL 2195025, at *4 (W.D. Tex. June 17, 2022) (“[A] district court should assess
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`the relevance and materiality of the information the witness may provide.” (citation omitted)).2
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`2 The
` Declaration also appears factually inconsistent. Compare Dkt. 64-1 ¶ 27 (representing
`) with Opp. at 2 n.2 (stating
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`); Ex. 43 (showing
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`).
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`Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 5 of 8
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`Compulsory Process Favors Transfer. Google identified 17 likely third-party witnesses
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`who reside in, or within the subpoena power of, the NDCA. Mot. at 4. Flyp identified one former
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`Google employee and one former Flyp employee in WDTX but, critically, did not state why their
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`testimony was material to the case. Opp. at 10–11. In contrast, Google properly established that its
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`identified prior art witnesses are relevant through detailed invalidity contention charts. Gentex
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`Corp. v. Meta Platforms, No. 6:21-cv-00755-ADA, 2022 WL 2654986, at *5; Dkt. 43, Exs. 10, 13,
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`19, 22, 26, 35. Flyp improperly seeks to discredit these prior artists by citing outdated precedent
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`from Parus. See In re Google, No. 2021-170, 2021 WL 4427899, at *1, 6–7 (Fed. Cir. Sep. 27,
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`2021) (finding weight should be given to prior art witnesses). Additionally, transfer will permit
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`the compelled testimony of Flyp’s patent attorney Stuart West, Mot. at 2, and potentially
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`knowledgeable employees at RingCentral and Cisco, Mot. at 4.
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`Practical Problems Are Neutral. Flyp cites four cases to argue that Google’s motion to
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`transfer was untimely. The cases are distinguishable,3 and Flyp’s argument is unconvincing.
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`Gentex, 2022 WL 2654986, at *9. Google filed its motion “within the deadlines allowed by the
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`Court’s Order Governing Proceedings.” Id. The Court should also disregard any judicial economy
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`considerations credited to the Dialpad litigation, which would not exist “but for” Flyp’s deliberate
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`and strategic sequencing of events. Van Dusen v. Barrack, 376 U.S. 612, 624 (1964). Because
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`there is no “similar litigation pending,” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 34 (1988)
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`(Scalia, J., dissenting), and there is no chance for overlap in “discovery, evidence, proceedings,
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`and trial,” In re Samsung Elecs., 2 F.4th 1371, 1380 (Fed. Cir. 2021), this factor is neutral.
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`3 Two of the cases (N5 Techs. and TQP Dev.) did not even consider defendant’s filing date. In
`Godo Kaisha, defendant filed its motion “just one week before the deadline for the substantial
`completion of document production.” Godo Kaisha IP Bridge 1 v. Broadcom, No. 2:16-cv-00134-
`JRG, 2017 WL 750290, at *7–9 (E.D. Tex. Feb. 27, 2017). In WSOU, the Court already held a
`Markman hearing, yet still found this factor neutral despite a seven-month delay. WSOU Invs. v.
`Arista Networks, No. 6:20-cv-01083-ADA, 2021 WL 6015526, at *5 (W.D. Tex. Nov. 5, 2021).
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`Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 6 of 8
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`B.
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`The Public Interest Factors Favor Transfer
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`Court Congestion Is Neutral. Transfer is warranted under this factor when litigation is
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`filed in a “congested center” rather than “being handled at its origin.” Mot. at 12. Flyp ignores this
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`doctrinal undercurrent, and instead parrots time-to-trial statistics. Opp. at 13. But “[t]he real issue
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`is . . . whether a trial may be speedier in another court because of its less crowded docket,” not
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`potentially in spite of it. In re Adobe, 823 F. App’x 929, 932 (Fed. Cir. 2020) (citation omitted).
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`Google respectfully submits that the Court should hold this factor neutral for the same reasons it
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`did in LBT IP II v. Uber, No. 6:21-cv-1210-ADA, 2022 WL 2541355 (W.D. Tex. July 6, 2022).
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`Local Interests Favor Transfer. Flyp frames this action as a “Texas-based dispute between
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`two companies that proudly call Texas home.” Opp. at 14. But Flyp does not dispute that the
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`“events that gave rise to this suit” all took place in NDCA. In re Volkswagen of Am., 545 F.3d 304,
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`318 (5th Cir. 2008); In re Apple, 979 F.3d 1332, 1345 (Fed. Cir. 2020). Although Google has
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`offices in WDTX, Google’s interest in NDCA far outweighs any interest in this district.
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`Decl. ¶ 2 (
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` of Google’s workforce in NDCA compared to
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` of Google’s workforce in
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`WDTX); Flexiworld Techs. v. Amazon, No. 6:20-cv-00553-ADA, Dkt. 101 at 18 (W.D. Tex. Aug.
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`2, 2021). Finally, Flyp emphasizes its presence within 100 miles of the Waco Courthouse, but its
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`argument contradicts precedent from both the Fifth and Federal Circuits focusing on the presence
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`within the transferor and transferee forums, not within 100 miles of the relevant courthouses. In re
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`Volkswagen of Am., 545 F.3d at 317–18 (drawing distinction between Dallas, TX and Marshall,
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`TX); In re Apple, 2022 WL 1676500, at *2. This factor favors transfer.
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`C.
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`Conclusion
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`For the reasons stated herein and in Google’s opening brief, as well as the supporting
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`evidence, Google respectfully requests transfer to the NDCA pursuant to § 1404.
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`Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 7 of 8
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`DATED: November 4, 2022
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`Respectfully submitted,
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`/s/ Robert W. Unikel
`Robert W. Unikel (Pro Hac Vice)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro Hac Vice)
`johncotiguala@paulhastings.com
`Daniel J. Blake (Pro Hac Vice)
`danielblake@paulhastings.com
`Grayson S. Cornwell (Pro Hac Vice)
`graysoncornwell@paulhastings.com
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Telephone: (312) 499-6000
`Facsimile: (312) 499-6100
`
`Robert R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Elizabeth Brann (Pro Hac Vice)
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Joshua Yin (Pro Hac Vice)
`joshuayin@paulhastings.com
`David M. Fox (Pro Hac Vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
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`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
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`Case 6:22-cv-00031-ADA Document 70 Filed 11/10/22 Page 8 of 8
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`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
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`Attorneys for Defendant Google LLC
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 4th day of November, 2022, a true and correct copy of the
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`foregoing document was filed electronically with the Clerk of Court using the CM/ECF system.
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`As of this date, all counsel of record have consented to electronic service and are being served
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`with a copy of this document through the Court’s CM/ECF system and by email.
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`/s/ Robert W. Unikel
`Robert W. Unikel
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