United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE
the Court are several motions. The first is Defendant Active
Network, LLC's (“Active”) Motion to Transfer
Venue. (Dkt. 24). The next two are motions to strike filed by
Plaintiff Alexander Stross (“Stross”): one to
strike Active's third-party claim for contribution, (Dkt.
14), and the other to strike Active's affirmative
defenses, (Dkt. 15). Each of the motions has become ripe, and
the Court will resolve each of them in this order. Having
considered the parties' briefs, the record, and the
relevant law, the Court finds that all three motions should
is a photographer who lives in Austin. (Compl., Dkt. 1, at
1-2). He took a photo of Monument Valley (the
“Photo”) that he allegedly registered with the
United States Copyright Office. (Id. at 2). He
alleges that Active used the Photo on its website without
permission. (Id. at 3). He is suing Active for
copyright infringement for violation of his rights under 17
U.S.C. § 106. (Id. at 5-6).
meanwhile, alleges that it merely provides space on its
website for customers to post their own content, and that
Third-Party Defendant EPIC Adventures (“Epic”),
one of its customers, is solely responsible for publishing
the Photo. (3d Party Compl., Dkt. 7, at 2). Active has filed
crossclaims against Epic for indemnity and contribution.
(Id. at 3-4).
which is based in Dallas, now asks the Court to transfer this
action to the Northern District of Texas pursuant to its
discretionary authority under 28 U.S.C. § 1404. (Mot.
Transfer, Dkt. 24, at 3). Stross opposes the motion, (Dkt.
26), and has separately moved to strike both (a) all of
Active's affirmative defenses and (b) its crossclaim for
contribution. (Dkts. 14, 15).
MOTION TO TRANSFER VENUE
1404 provides that “[f]or the convenience of parties
and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or
division where it might have been brought.” 28 U.S.C.
§ 1404(a). As such, “[t]he threshold question in
applying the provisions of § 1404(a) is whether the suit
could have been brought in the proposed transferee
district.” In re Volkswagen AG, 371 F.3d 201,
203 (5th Cir. 2004). If so, the Court turns to consideration of
“all relevant factors to determine whether or not on
balance the litigation would more conveniently proceed and
the interests of justice be better served by transfer to a
different forum.” Peteet v. Dow Chem. Co., 868
F.2d 1428, 1436 (5th Cir. 1989) (quoting 15 C. Wright, A.
Miller & E. Cooper, Federal Practice and Procedure §
3847, at 370 (1986)).
relevant factors include matters of both private and public
interest. Volkswagen AG, 371 F.3d at 203; Action
Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337,
340 (5th Cir. 2004). The private-interest factors include:
(1) the relative ease of access to sources of proof; (2) the
availability of compulsory process to secure witnesses'
attendance; (3) the willing witnesses' cost of
attendance; and (4) all other practical problems that make
the case's trial easy, expeditious, and inexpensive.
Volkswagen AG, 371 F.3d at 203 (citing Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)).
The public-interest factors include: (1) the administrative
difficulties flowing from court congestion; (2) the local
interest in having local issues decided at home; (3) the
forum's familiarity with the governing law; and (4) the
avoidance of unnecessary conflict-of-law problems involving
the application of foreign law. Id. No. single
factor is dispositive. Id.
Court must also “give some weight to the
plaintiffs' choice of forum.” Atl. Marine
Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of
Texas, 571 U.S. 49, 63 n.6 (2013). However, the
plaintiff's venue choice “is neither conclusive nor
determinative. In Re: Horsehoe Entertainment, 337
F.3d 429, 434 (5th Cir. 2003). Rather, the party seeking
transfer must show “good cause”: a moving party,
in order to support its claim for a transfer, must satisfy
the statutory requirements and clearly demonstrate that a
transfer is “[f]or the convenience of parties and
witnesses, in the interest of justice.” Humble Oil
& Refining Co. v. Bell Marine Serv., Inc., 321 F.2d
53, 56 (5th Cir. 1963). Thus, when the transferee venue is
“not clearly more convenient than the venue chosen by
the plaintiff, the plaintiff's choice should be
respected.” In re Volkswagen of Am., Inc., 545
F.3d 304, 315 (5th Cir. 2008). But when the movant
demonstrates that the transferee venue is clearly more
convenient, “it has shown good cause and the district
court should therefore grant the transfer.”
public-interest factors are not seriously contested, nor are
they of significant weight. Active admits, and Stross does
not dispute, that the final two public-interest factors are
neutral. (Mot. Transfer, Dkt. 24, at 12; Resp. Mot. Transfer,
Dkt. 26, at 9-10). The time from filing to trial is six
months shorter in this district, but the time from filing to
disposition is one month shorter in the Northern District of
Texas. (See Mot. Transfer, Dkt. 24, at 11). Although
this factor “favors a district that can bring a case to
trial faster, ” Frito-Lay N. Am., Inc. v. Medallion
Foods, Inc., 867 F.Supp.2d 859, 871 (E.D. Tex. 2012),
the difference is slight and speculative; its weight is
therefore marginal. Finally, both districts have an arguable
interest in deciding this litigation, as the injury occurred
in this district and Active's principal place of business
is in the Northern District. See id. (“[T]he
location of the alleged injury is an important consideration
in determining how to weigh [the local-interest]
factor.”); All Voice Developments US, LLC v.
Microsoft Corp., No. 6:09-CV-366, 2010 WL 11468302, at
*4 (E.D. Tex. Apr. 8, 2010) (finding that the party's
“principal place of business is relevant when
considering [the local-interest] factor”).
the private interest factors, the first factor-access to
evidence-weighs only barely in Active's favor, if at all.
Active argues that this factor tilts in its favor because the
server that hosted the webpage on which the Photo was
displayed is in Dallas and “the relevant documents and
records” are in Dallas. (Mot. Transfer, Dkt. 24, at 7).
Missing is any explanation why it would be any more difficult
to access evidence of online conduct-presumably, digitally
stored evidence-in Austin than in Dallas. Meanwhile, Epic
principal John Hardy (“Hardy”), whom Active says
is responsible for posting the photo, lives and works in this
district. (Id. at 8). Even if Hardy has no
evidence, this factor would weigh only negligibly in
Active's favor, given the ease of accessing and
transmitting digitally stored evidence. See Mateos v.
Select Energy Services, L.L.C., 919 F.Supp.2d
817, 822 (W.D. Tex. 2013) (“Typically, the
accessibility and location of sources of proof should weigh
only slightly in this Court's transfer analysis,
particularly since these factors have been given decreasing
emphasis due to advances in copying technology and
second and third factors are neutral. Active identifies as
witnesses two of its employees who live in Dallas, over 200
miles from Austin, and Hardy, who lives less than 100 miles
from Austin. (Mot. Transfer, Dkt. 24, at 9-10). But Active
identifies no nonparty witnesses that live outside this
district or more than 100 miles from Austin. (See
id.). The Court's subpoena power “is not an
important consideration when the only witnesses are party
witnesses.” Broussard v. First Tower Loan,
LLC, 135 F.Supp.3d 540, 546 (E.D. La. 2015). Similarly,
“while the cost of attendance for party witnesses can
be considered, the cost of attendance for nonparty witnesses
is entitled to greater weight.” Id.; see
also Mateos, 919 F.Supp.2d at 822 (quoting Dupre v.
Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D. Tex.
1993)) (“[W]hen ‘key witnesses are employees of
the moving party,' courts are less likely to transfer
venue for the convenience of those witnesses because
‘[i]n such cases, the moving party can compel those
witnesses to attend the trial.'”). Moreover, two
key witnesses-Stross and Hardy-live in this district. (Resp.
Mot. Transfer, Dkt. 26, at 6-8). Transferring this action to
the Northern District would simply shift the inconvenience
for Active's two key witnesses to two others. In such
circumstances, the cost of attendance for the movant's
witnesses is of neutral value to a court's transfer
analysis. See Affinity Labs of Texas v. Samsung Elecs.
Co., Ltd., 968 F.Supp.2d 852, 858 (E.D. Tex. 2013)
(“When inconvenience would exist in either potential
venue, merely shifting inconvenience from one party's
witnesses to the other's is insufficient to affect a
transfer of venue analysis.”).
the final factor, Active offers no practical problems with
trying this action in this district; it only argues that it
would not be impractical to transfer this action to the
Northern District. (Mot. Transfer, Dkt. 24, at 10). This
factor is therefore neutral at best. Considering all of the
public and private factors together, and giving some weight
to Stross's choice of forum, the Court finds that Active
has not met its burden to establish that the Northern
District of Texas is “clearly more convenient”
than the ...