Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

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0 Exhibit H CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 2 of 10 2017 WL 4586800 (S.D.N.Y.) (Trial Motion, Memorandum and Affidavit) United States District Court, S.D. New York. MIRROR WORLDS TECHNOLOGIES, LLC, Plaintiff, v. FACEBOOK, INC., Defendant. No. 1:17-cv-3473 (JGK). September 6, 2017. Memorandum of Points and Authorities in Support of Facebook's Motion to Transfer Venue under 28 U.S.C. § 1404(a) Heidi L. Keefe (CA 178960)(Pro Hac Vice), Mark Weinstein (CA 193043) (Pro Hac Vice), Benjamin G. Damstedt (CA 230311), (Pro Hac Vice), Alexandra M. Leeper (CA 307310), (Pro Hac Vice), Cooley LLP, 3175 Hanover Street, Palo Alto, California 94304-1130, Phone: (650) 843-5000, Facsimile: (650) 849-7400, hkeefe@cooley.com, mweinstein@cooley.com, bdamstedt@cooley.com, aleeper@cooley.com; Joseph Drayton (NY 2875318), Cooley LLP, 1114 Avenue of the Americas, New York, New York 10036-7798, Phone: (212) 479-6000, Facsimile: (212) 479-6275, jdrayton@cooley.com, for defendant Facebook, Inc. JURY TRIAL DEMANDED TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................................... 1 II. BACKGROUND ........................................................................................................................... 1 A. Mirror Worlds is a Texas-based patent holding company suing on outdated patents that 1 Facebook does not use ........................................................................................................................ B. Facebook's headquarters, witnesses, and documents are concentrated in the Northern District of 4 California ............................................................................................................................................ III. ARGUMENT ............................................................................................................................... 5 A. Legal Standard ............................................................................................................................... 5 B. The Case Should Be Transferred Under Section 1404(a) ................................................................ 6 1. This case could have been brought in the Northern District of California ...................................... 6 2. The convenience factors weigh heavily in favor of transfer ............................................................. 6 a. Mirror Worlds' choice of forum should be given little weight, because it is a patent-assertion entity 6 who repeatedly forum-shopped in the Eastern District of Texas ......................................................... b. The convenience of the witnesses and the parties strongly favors transfer to the Northern District 7 of California ........................................................................................................................................ e. The Northern District of California is the locus of operative facts and relevant sources of proof .... 11 d, The availability of compulsory process also favors transfer ............................................................ 12 e. The relative means of the parties is neutral ..................................................................................... 13 3. Transfer would promote the interests of justice .............................................................................. 13 IV. CONCLUSION ............................................................................................................................ 13 TABLE OF AUTHORITIES Cases In re Acer A m. Corp., 626 F.3d 1252 (Fed. Cir. 2010) ....................... 12 D.H. Blair & Co. v. Gottdiener, 462 F.3d 95 (2nd Cir. 2006) ............... 5, 12 In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009) ......................... 12 GPNE Corp. v. Amazon.com, Inc., No. 11-00426 SOM-RLP, 2012 11 WL 1656923 (D. Haw. May 9, 2012) ................................................. IXI Mobile (R & D) Ltd. v. Samsung Elecs. Co. Ltd., No. 14- 6 CV-4355 (RJS), 2015 WL 4720293 (S.D.N.Y. Aug. 6, 2015) .............. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 3 of 10 Mirror Worlds, LLC v. Apple, Inc., 784 F. Supp. 2d 703 (E.D. Tex. 3 2011), aff'd, 692 F.3d 1351 (Fed. Cir. 2012) ....................................... Mirror Worlds, LLC V. Apple Inc., No. 08-0088 (E.D. Tex. 2008) ...... 2 Mirror Worlds, LLC v. Apple Inc., No. 6:08-cv-0088-LED, ECF No. 3, 6, 11, 12 447 (E.D. Tex. Nov. 15, 2010) ........................................................... Mirror Worlds Techs., LLC v. Apple, Inc., 6:13-cv-0419-RWS (E.D. 6, 11 Tex. 2013) ........................................................................................... Mirror Worlds Techs., LLC v. Apple, Inc., 6:13-cv-0419-RWS, ECF 3 Nos. 346, 393 (E.D. Tex. 2013) .......................................................... Mirror Worlds Techs., LLC v. Apple, Inc. et al., Nos. 13-0419, 13-941 3 (E.D. Tex. 2013) ................................................................................. Mirror Worlds Techs., LLC v. Dell, Inc., No. 6:13-cv-0941-RWS 3, 6, 11 (E.D. Tex. 2013) ................................................................................. Pragmatus AV LLC v. Face book, Inc., 769 F. Supp. 2d 991 (E.D. Va. 7 2011) ................................................................................................... Rush v. Fischer. 923 F. Supp. 2d 545 (S.D.N.Y. 2013) ........................ 5, 6 Saltire Indus., Inc., v. Waller Lansden Dortch & Davis PLLC, 331 5, 7 B.R. 101 (S.D.N.Y. 2005) .................................................................. Smart Skins LLC v. Microsoft, Corp., No. 14-Civ-10149(CM), 2015 7 WL 1499843 (S.D.N.Y. Mar. 27, 2015) .............................................. Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823 (Fed. Cir. 2003) 5 Van Dusen v. Barrack, 376 U.S. 612 (1964) ........................................ 5 Windy City Innovations, LLC v. Facebook, Inc., No. 1:15-CV-00102- 6 GCM, 2016 WL 1048068 (W.D.N.C. Mar. 16, 2016) ......................... Word to Info, Inc. v. Facebook, Inc., No. 3:14-CV-4387-K, ECF No. 6, 13 49 (N.D. Tex. July 23, 2015) .............................................................. Statutes 28 U.S.C. 1391 ................................................................................... 6 28 U.S.C. § 1404, et seq ...................................................................... 1, 5, 6, 13 Other Authorities Fed R. Civ. P 45(c)(1)(A)-(B) ............................................................. 12 I. Introduction Facebook moves to transfer this patent case to the Northern District of California, where the accused products were developed, where they continue to be maintained and improved, and where numerous other potential trial witnesses reside. Litigating this case in California would be much more efficient, allowing the many Northern California witnesses to avoid extensive travel and downtime associated with a trial far away from their residences, Moreover, compulsory process over potentially relevant non-party witnesses is available in the Northern District of California, where it is not in the Southern District of New York. Litigating in California would also promote the interests of justice by conducting the litigation at the factual locus of the case. In contrast, Plaintiff Mirror Worlds Technologies, LLC ("Mirror Worlds") is a Texas-based patent assertion entity. Although Mirror Worlds has identified witnesses located in or near New York, the Mirror Worlds patent family has been asserted three times before this case, all in the Eastern District of Texas. Mirror Worlds' past litigation shows its capability and preference for litigating outside this District. Accordingly, Facebook respectfully requests that the Court transfer this case to the Northern District of California under 28 U.S.C. § 1404(a). II. Background A. Mirror Worlds is a Texas-based patent holding company suing on outdated patents that Facebook does not use. Plaintiff is the latest non-practicing entity to assert the Mirror Worlds patents. The Mirror Worlds patents describe an alleged alternative to the file-management features of "conventional operating systems" like Microsoft Windows and Apple's OS X operating system. ('227 patent, col. 1:21-30, 2:6-7.) The Mirror Worlds operating system is allegedly different because it uses timestamps, instead of names, to identify individual documents. (Id., col. 1:4-10, 1:21-30.) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 4 of 10 Similarly, instead of using folders to organize sets of documents, the Mirror Worlds operating system stores every document created or received by the computer in one "chronologically ordered 'stream.' " (Id., col. 1:4-10.) The patents depict this "stream" as a sequence of rectangles receding into the screen: TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE The named inventors tried to commercialize the Mirror Worlds operating system but were unsuccessful, despite initial fanfare from the press. (See, e.g., ECF No. 1 ("Compl.") ¶¶ 14, 17-19, 21, 23.) When Mirror Worlds dissolved, its assets were transferred to a holding company called Recognition Interface for just over $200,000. That transfer included all of Mirror Worlds' patents and applications, not just the patents in this case. The patents lay dormant for years until they were sold to another holding company. That company took the name "Mirror Worlds, LLC," incorporated in the Eastern District of Texas, and then sued Apple in that district. Mirror Worlds, LLC v. Apple Inc., No. 08-0088 (E.D. Tex. 2008). Mirror Worlds, LLC alleged that Apple's operating system infringed the Mirror Worlds patents. Without ruling on Apple's pre-trial dispositive motions, the district court sent the case to trial. 1 During the trial, Mirror Worlds cast aspersions on Apple and emphasized Apple's wealth. 2 Mirror Worlds' advocacy resulted in a jury verdict in its favor, but its victory was short-lived, The district court granted judgment as a matter of law of non-infringement and damages, and the Federal Circuit affirmed on appeal. Mirror Worlds, LLC v. Apple, Inc., 784 F. Supp. 2d 703 (E.D. Tex. 2011), aff'd, 692 F.3d 1351 (Fed. Cir. 2012). Following that loss, the patents were sold to another patent assertion entity. The new company used similar tactics: It took the name "Mirror Worlds Technologies, LLC," incorporated in the Eastern District of Texas, and sued in that district, alleging that Apple's and Microsoft's operating systems Infringed the Mirror Worlds patents. Mirror Worlds Techs., LLC v. Apple, Inc. et ah, Nos. 13-0419, 13-941 (E.D. Tex. 2013), The Microsoft-related defendants settled after the district court denied their motion to transfer. Mirror Worlds Techs., LLC v. Dell, Inc., No. 6:13-cv-0941-RWS (E.D. Tex. 2013). Apple settled after the district court held that Apple was barred under issue preclusion from asserting its prior- art invalidity defenses but that Mirror Worlds was not barred from asserting the same infringement theory it had lost on in the first trial. Mirror Worlds Techs., LLC v. Apple, Inc., 6:13-cv-0419-RWS. ECF Nos. 346, 393 (E.D. Tex. 2013). The same patent holding company--Mirror Worlds Technologies, LLC--filed this suit against Facebook. As Plaintiff's counsel represented to the Court at the case management conference: "The patents have expired. They expired last year." (July 17, 2017 Tr. at 4:15-17.) B. Facebook's headquarters, witnesses, and documents are concentrated in the Northern District of California. Facebook enables people to connect, share, discover, and communicate with each other on mobile devices and personal computers. For example, when users log into Facebook, they are shown News Feed, an algorithmically-ranked series of stories created by other Facebook users and advertisements individualized for each person. Facebook's headquarters and more than [Text redacted in copy.] employees are located in Menlo Park. California, in the Northern District of California. (Declaration of Michael Duffey in Support of Defendant Facebook, Inc.'s Motion to Transfer ("Duffey Decl.") ¶ 4.) Minor Worlds' complaint took aim at large swaths of Facebook, including News Feed, Timeline, Activity Log, Events. Graph Search, TAO, and Facebook's entire server architecture. (Compl. ¶¶ 64, 66, 71, 82, 84, 87, 90, 104, 125.) Mirror Worlds' infringement contentions appear to try to expand its allegations even further, pointing generically to "the Facebook website, platform, or mobile applications for iOS, Android, and other mobile device operating systems" and non-exclusive examples of features like those noted above. (Declaration of Benjamin G. Damstedt in Support of Defendant Facebook. Inc.'s Motion to Transfer ("Damstedt Decl."), Ex. K at 2.) As detailed below, as Facebook has continued its investigation, it has become clear that the vast majority of potential witnesses are based in the Northern District of California. (Duffey Decl. ¶¶ 3-5, 7-14.) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 5 of 10 III. Argument A. Legal Standard A district court may transfer a case "[f]or the convenience of parties and witnesses, in the interest of justice ...." 28 U.S.C. § 1404(a). "[T]he purpose of [section 1404(a)] is to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense," Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation omitted). "The inquiry under this provision involves two parts: first, whether the action could have been brought in the transferee district, and second, whether the convenience of the parties and witnesses and the interests of justice favor transfer." Rush v. Fischer, 923 F. Supp. 2d 545, 556 (S.D.N.Y. 2013), For the second part, courts consider a variety of factors, including; (1) the plaintiff's choice of forum, (2) the convenience of the witnesses, (3) the location of relevant documents and relative ease of access to sources of proof. (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties. DM. Blair & Co. v. Gottdiener, 462 F.3d 95. 107 (2nd Cir. 2006) (brackets in original). 3 The Court should also consider the public interest, including "administrative difficulties that follow from court congestion" and the "interest in having localized controversies decided at home." Saltire Indus., Inc., v. Waller Lansden Dortch & Davis PLLC, 331 B.R. 101, 105 (S.D.N.Y. 2005). B. The Case Should Be Transferred Under Section 1404(a). 1. This ease could have been brought in the Northern District of California. The initial question under Section 1404(a) is whether the suit could have been brought in the proposed transferee district. Rush, 923 F. Supp. 2d at 556. There can be no dispute that Mirror Worlds could have brought this case in the Northern District of California, where Facebook's headquarters are located. (Duffey Decl. ¶2.) 28 U.S.C. §§ 1400(b), 1391(c)-(d). 4 2. The convenience factors weigh heavily in favor of transfer. a. Mirror Worlds' choice of forum should be given little weight, because it is a patent- assertion entity who repeatedly forum-shopped in the Eastern District of Texas. The Court should afford Mirror Worlds' choice of forum little to no weight. Plaintiff is a patent-holding company that incorporated in the Eastern District of Texas and litigated two suits in that district. (Damstedt Decl., Ex. A; Damstedt Decl., Ex. E ¶ 4.) Mirror Worlds Techs., LLC v. Dell, Inc., No. 6:13-cv-0941-RWS (E.D. Tex. 2013); Mirror Worlds Techs., LLC v. Apple, Inc., 6:13-cv-0419-RWS (E.D. Tex. 2013). Plaintiff's predecessor was likewise incorporated in Texas and filed suit there. (Damstedt Decl., Ex. F ¶ 1.) Mirror Worlds, LLC v. Apple, Inc., No. 6:08-cv-0088-LED (E.D. Tex. 2008). Moreover, courts give little deference to the venue choice of plaintiff-patentees whose business is obtaining and asserting patents. E.g., IXI Mobile (R & D) Ltd., v. Samsung Elecs. Co. Ltd., No. 14-cv-4355 (JUS), 2015 WL 4720293, at *8 (S.D.N.Y. Aug. 6, 20] 5) (affording little weight to plaintiff's choice of forum because "the operative facts, ... lack a © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 6 of 10 meaningful connection to the Southern District of New York" where plaintiff incorporated in New York but had no business operations "other than patent assertion activities"); Smart Skins LLC v. Microsoft, Corp., No. 14-Civ-10149 (CM), 2015 WL 1499843, at *5-6 (S.D.N.Y, Mar. 27, 2015) (affording minimal deference to plaintiff's choice of forum where plaintiff's only business in New York was as a patent assertion entity); Pragmatus AV LLC v. Facebook, Inc., 769 F. Supp. 2d 991, 995 (E.D. Va. 2011) (no deference to forum choice of plaintiff whose "main line of business is enforcing its intellectual property rights'"). The plaintiff's choice of forum is also "given less weight when none of the operative facts occur in the district." Saltire Indus., 331 B.R. at 106. Here, the accused features were developed in the Northern District of California, and the vast majority of engineers continuing to maintain and improve them are employed in that district. (Duffey Decl. ¶¶ 7-14.) The subject matter of the patents was developed outside this District, and the company that attempted to commercialize the Mirror Worlds operating system was also headquartered outside this District. Accordingly, any weight that could be accorded Minor Worlds' forum choice is "diminished because the operative facts have little connection to New York." Saltire Indus., 331 B.R. at 106. b. The convenience of the witnesses and the parties strongly favors transfer to the Northern District of California. Litigating this case in the Northern District of California would be much more convenient for the witnesses and the parties. "The convenience of both party and non-party witnesses may be the single most important factor in the analysis of whether one forum is more appropriate than a competing forum." Saltire Indus., 331 B.R. at 105. Mirror Worlds" complaint and infringement contentions suggest that it will pursue a scattershot approach, accusing numerous Facebook features. (Compl. ¶¶ 64, 66, 71, 82, 84, 87. 90, 104, 125; Damstedt Decl., Ex. K.) The complaint points to a list of features "including the memcache servers and the TAO servers, to provide features such as News Feed, Timeline. Graph Search. Events, and Activity Log." (Compl, ¶ 84.) Although its contentions provide little explanation of how Mirror Worlds could attempt to read its claims onto Facebook's products, the features named in the infringement contentions suggest Mirror Worlds might accuse an even broader collection of Facebook functionalities: "News Feed, Timeline, search, Graph Search, Events. Activity Log. Ticker, or glance views (e.g., previews, mouse-overs, summaries, thumbnails, video, and content generated or scraped by Facebook Crawler), and hardware or software that implements such features (e.g., Social Graph, MemCache, TAO, Hadoop, storage clusters, databases, and servers)." (Damstedt Decl., Ex. K at 2.) Addressing Minor Worlds' broad-sweeping allegations will be much more efficient in the Northern District of California, where Facebook's headquarters are located. (Duffey Decl. ¶2.) Over [Text redacted in copy.] of Facebook's domestic engineers work in Facebook's Northern California headquarters, including the overwhelming majority of Facebook employees knowledgeable about the design, development, and operation of the multiple Facebook products accused in this case. (Duffey Decl. ¶¶ 5, 7-14) The accused features named in the complaint were developed in Facebook's Northern California headquarters. (Duffey Decl. ¶¶ 7-14.) 5 Indeed, the allegations in this case long predate the New York office that Mirror Worlds noted in its complaint. (Compl. ¶ 4.) As a result, the vast majority of potential witnesses are located in the Northern District of California. For example, Mirror Worlds' allegations in the complaint relating to TAO and memcache (Facebook storage systems) cite two papers and a presentation. (E.g., Compl. ¶¶ 77 n.31, 78 n.32, 81 n.40.) These references highlight the importance of the Northern District of California. Of the 28 authors on these publications, 15 are still at Facebook. (Duffey Decl. ¶ 9) Of these 15 engineers still at Facebook. 80% are in Northern California, one is in Boston, and none are located in New York. (Id.) For example, one of the authors. Dmitri Petrov, worked on TAO stalling in May 2009 when he joined Facebook until January 2016. when he moved to another team within Facebook. (Id.) Mr. Petrov has worked in the Menlo Park office throughout his time at Facebook. (Id.) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 7 of 10 Similarly, the vast majority of the News Feed team is in the Northern District of California. Facebook first developed News Feed from its Northern California headquarters years before the New York office opened. (Duffey Decl. ¶ 10.) Today, the overwhelming majority of employees who work on News Feed still do so from Facebook's Northern California headquarters. (Duffey Decl. ¶ 10.) An example is David Vickrey, a software engineer Facebook identified on its initial disclosures. (Damstedt Decl., Ex. G.) Dr. Vickrey has worked on News Feed since he joined in March 2010, before Mirror Worlds' earliest infringement allegations. (Duffey Decl. ¶ 10.) Facebook employees knowledgeable about Facebook's product development of News Feed are also located predominantly in Northern California. (Id.) Greg Marra, for example, has worked as a Product Manager for News Feed since August 2012. (Id.) Although a small percentage of News Feed employees work on News Feed in New York, they focus on tasks that are unrelated to Mirror Worlds' allegations about chronological ordering. (Id.; Compl. ¶¶ 94-96, 106, 113, 126-27.) All engineers on Timeline originally worked out of the Northern California headquarters, (Duffey Decl. ¶ 11.) Currently, approximately [Text redacted in copy.] work in Northern California, and none work in New York. (Id.) [Text redacted in copy.] engineers for Activity Log have worked in Northern California from its inception to the present. (Id. ¶ 12.) Facebook's initial disclosures identify Jeffrey Huang, an Engineering Manager who has worked on Timeline since before Mirror Worlds" earliest infringement allegations and oversees both Timeline and Activity Log. (Id. ¶¶ 11-12; Damstedt Decl., Ex. G.) Mr. Huang resides in the Northern District of California. (Duffey Decl. ¶ 11.) Nearly all of Facebook engineers on Events work out of Facebook's headquarters in Northern California. (Duffey Decl. ¶13.) Facebook's initial disclosures identify a manager overseeing the group, Jeffrey Spehar, who resides in Northern California. (Id. Damstedt Decl., Ex. G.) The Events team includes one engineer located in New York, but he has no direct involvement in indexing, retrieving, or ranking results from Events queries. (Duffey Decl. ¶ 13.) Facebook likewise developed Graph Search in Northern California. (Duffey Decl, ¶ 14.) The engineers who worked on Graph Search were located in Northern California, with a few engineers in Seattle. (Id) The feature was deprecated in 2014. (Id.) However, current Facebook employees knowledgeable about Graph Search are based in Menlo Park and Seattle. (Id.) One example is Xiao Li, who is an Engineering Director at Facebook, and worked on Graph Search as a software engineer. (Id.) Ms. Li still works in the Menlo Park headquarters. (Id) In addition to the engineering teams at the focus of this patent case, likely witnesses related to Facebook's operations, marketing, and financials are also located in Northern California. Facebook's initial disclosures identify Chad Heaton, who works in Facebook's Northern California headquarters. (Duffey Decl. ¶ 5; Damstedt Decl., Ex. G.) Because the vast majority of employees knowledgeable about the accused products in Mirror Worlds' complaint are based in Northern California, the management of Facebook's highly proprietary documentation, source code, and physical systems operating the accused products and features is also overwhelmingly done from Northern California. (Duffey Decl. ¶ 3.) Balanced against Facebook's myriad Northern California employees who work on the accused features, Mirror Worlds has comparatively few identified witnesses. Although some of these witnesses may be located in the greater New York metropolitan area, Mirror Worlds has repeatedly demonstrated its willingness to litigate away from the East Coast. Since its incorporation, Mirror Worlds pursued both of its litigation efforts regarding the family of patents at issue here in the Eastern District of Texas, both during Corey Horowitz's tenure as Mirror Worlds' President. (Damstedt Decl. Exs. A-E.) Mirror Worlds Techs., LLC v. Dell Inc., No. 6:13-cv-0941-RWS (E.D. Tex. 2013); Mirror Worlds Techs., LLC v. Apple, Inc., 6:13-cv-0419-RWS (E.D. Tex. 2013). Likewise, the predecessor patent owner, Mirror Worlds, LLC, brought suit on the Mirror Worlds patent portfolio in the Eastern District of Texas. Mirror Worlds, LLC v. Apple, Inc., No. 6:08- cv-0088-LED (E.D. Tex. 2008). These multiple lawsuits have repeatedly demonstrated Mirror Worlds' capability and preference for litigating outside the Southern District of New York. Thus, any potential inconvenience to Mirror Worlds and its witnesses owing to litigation outside New York should be given little weight. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 8 of 10 In sum, the convenience of the witnesses and parties tips heavily to transferring this case to the Northern District of California. c. The Northern District of California is the locus of operative facts and relevant sources of proof. The locus of operative facts is also the Northern District of California. Courts considering this issue have looked to where the accused product "was designed, developed, and tested, as well as to where decisions were made relating to sales and marketing." GPNE Corp. v. Amazon.com, Inc., No. 11-00426 SOM-RLP, 2012 WL 1656923, at *6 (D. Haw. May 9, 2012) (collecting cases). As detailed above, the activity giving rise to Mirror Worlds' patent infringement allegations occurred in Northern California. Facebook's products were initially designed and developed in the Northern District of California, where the vast majority of their continuing development and maintenance still occurs. (Duffey Decl. ¶¶ 7-14.) Similarly, the majority of the decisions made regarding sales and marketing of the accused products are made from Facebook's Northern California headquarters. (Id. ¶ 5.) Furthermore. "[i]n patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant's documents are kept weighs in favor of transfer to that location." In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009): see also In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010) (explaining that a corporate party's relevant discoverable material is generally located at its headquarters); D.H. Blair, 462 F.3d at 107 (one factor the Court must consider is "the location of relevant documents and relative ease of access to sources of proof). Here, Facebook's documents are managed and readily accessible from its Northern California headquarters. (Duffey Decl. ¶ 3.) d. The availability of compulsory process also favors transfer. The availability of compulsory process also favors litigation in the Northern District of California. D.H. Blair, 462 F.3d at 107 (one factor the Court must consider is "the availability of process to compel the attendance of unwilling witnesses"). Mirror Worlds' complaint repeatedly trumpets its litigation against Apple, including Apple emails and the eventual settlement. (E.g., Compl. ¶¶ 20, 35.) Apple employees with knowledge of those events may become important trial witnesses to provide the proper context and counter Mirror Worlds' claims and pronouncements. Apple's headquarters are in the Northern District of California and several relevant former employees reside there as well. For example. Don Lindsay and Bertrand Serial gave testimony in Mirror Worlds' first case against Apple about the Apple emails and remain in the Northern District of California. (Damstedt Decl., Ex. H-I.) Mirror Worlds, LLC v. Apple, Inc., No. 6:08-cv-0088- LED, ECF No. 418 (Lindsay trial testimony), 419 (Serlet trial testimony).) Compulsory process is available to bring these Apple witnesses to trial in the Northern District of California but not in the Southern District of New York. Fed R. Civ. P 45(c)(1)(A)-(B). e. The relative means of the parties is neutral. The final convenience factor suggests consideration of the relative means of the parties. That factor is irrelevant here. Mirror Worlds is owned by a well-heeled investment film, which has allegedly obtained millions of dollars in licensing and other revenue from the Mirror Worlds patents. (Damstedt Decl., Ex. J; Compl. ¶ 35.) Mirror Worlds would suffer no financial hardship if the case were litigated in the Northern District of California. ***** In sum, the convenience factors weigh heavily in favor of transfer. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 CaseTECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 2017 50-8 Filed WL 4586800... 01/08/19 Page 9 of 10 3. Transfer would promote the interests of justice. The public interest in having Northern California-based controversies decided at home favors transfer to the Northern District of California. Facebook is a Northern California-based company with predominantly Northern California- based employees facing allegations of patent infringement for products exclusively developed and primarily maintained in Northern California. Therefore, transferring this case for resolution at its factual home base--the Northern District of California--would serve the interests of justice. See Word to Info, Inc. v. Facebook, Inc. No. 3:14-CV-4387-K, ECF No. 49 at 16 ("The public interest factor of local interest in deciding local controversies at home favors transfer."). IV. Conclusion The convenience factors and the interest of justice strongly favor transferring this case to the Northern District of California under 28 U.S.C. § 1404(a). Accordingly, Facebook respectfully requests that the Court transfer this case to the United States District Court for the Northern District of California. Dated: September 1, 2017 By: <<signature>> Heidi L. Keefe (CA 178960)(Pro Hac Vice) Mark Weinstein (CA 193043) (Pro Hac Vice) Benjamin G. Damstedt (CA 230311) (Pro Hac Vice) Alexandra M. Leeper (CA 307310) (Pro Hac Vice) COOLEY LLP 3175 Hanover Street Palo Alto, California 94304-1130 Phone: (650) 843-5000 Facsimile: (650) 849-7400 hkeefe@cooley.com mweinstein@cooley.com bdamstedt@cooley.com aleeper@cooley.com © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 Case TECHNOLOGIES, MIRROR WORLDS 6:18-cv-00080-ADA Document LLC, Plaintiff, v...., 201750-8 Filed 01/08/19 WL 4586800... Page 10 of 10 Joseph Drayton (NY 2875318) COOLEY LLP 1114 Avenue of the Americas New York, New York 10036-7798 Phone: (212) 479-6000 Facsimile: (212) 479-6275 jdrayton@cooley.com Attorneys for Defendant Facebook, Inc. Footnotes 1 Mirror Worlds, LLC v. Apple Inc., No. 6:08-cv-0088-LED, ECF No. 447 (E.D. Tex. Nov. 15, 2010) (denying Apple's summary judgment motions at ECF No. 221, 223-226, and 229 as moot after the trial). 2 E.g., Mirror Worlds, LLC v. Apple. Inc., No. 6:08-cv-0088-LED, ECF No. 416 (E.D. Tex. Oct. 20, 2010) at 61:15-17 (opening statement: "You're going to find out that every day that you and I are in this courtroom, Apple makes 50 million American dollars from using' our technology, $50 million."); id, ECF No. 425 at 86:2-8, 89:19-90:2 (closing argument: accusing Apple of "courthouse amnesia" and arguing that Steve "Jobs never bothered to come to Tyler" because "he had more important stuff to do"). 3 Regional circuit law applies to motions to transfer patent infringement cases under Section 1404. Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 836 (Fed. Cir. 2003) ("In reviewing a district court's decision regarding a motion to transfer under 28 U.S.C. § 1404(a), this court applies the law of the appropriate regional circuit."). 4 See, e.g., Windy City Innovations, LLC v. Facebook, Inc. No. 1:15-CV-00102-GCM, 2016 WL 1048068 at *2, 4 (W.D.N.C. Mar. 16, 2016) (transferring case against Facebook to the Northern District of California); Word to Info, Inc. v. Facebook. Inc., No. 3:14-CV-4387-K. ECF No. 49 at 5, 17 (N.D. Tex. July 23, 2015) (same). 5 Review of the additional features accused for the first time in the infringement contentions is ongoing. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9