United States District Court, E.D. Texas, Marshall Division
PAYNE, UNITED STATES MAGISTRATE JUDGE.
Flywheel Sports, Inc. (hereinafter “Flywheel”)
filed a Motion to Transfer Pursuant to 28 U.S.C. §
1404(a), which is now before the Court. (Dkt. No.
This Motion seeks to transfer this case from the Eastern
District of Texas to the Southern District of New York.
Proper venue is not contested, as both parties have regular
and established places of business in this district and
Plaintiff has more than 100 employees at its “second
headquarters” in the district. After consideration of
the parties' briefing, the Court finds that Flywheel has
not established that venue would be clearly more convenient
in the SDNY.
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 or to any district or division to which all parties
have consented.” 28 U.S.C. § 1404(a). To determine
whether venue transfer is appropriate under § 1404(a),
the Fifth Circuit has adopted several private and public
interest factors. In re Volkswagen of Am., Inc., 545
F.3d 304, 315 (5th Cir. 2008) (“Volkswagen
II”). The private interest factors include (1) the
availability of compulsory process to secure the attendance
of witnesses; (2) the cost of attendance for willing
witnesses; (3) the relative ease of access to sources of
proof; and (4) all other practical problems that make trial
of a case easy, expeditious, and inexpensive. Id.
The public interest factors include (1) the administrative
difficulties flowing from court congestion; (2) the local
interest in having localized interests decided at home; (3)
the familiarity of the forum with the law that will govern
the case; and (4) the avoidance of unnecessary problems of
conflict of laws. Id.
plaintiff's choice of venue is not an express factor in
the analysis. Seven Networks, LLC v. Google LLC,
2:17-CV-00442-JRG, 2018 U.S. Dist. LEXIS 146375, at *8
(citing Volkswagen II, 545 F.3d at 315). However, a
moving defendant must demonstrate that the proposed venue is
clearly more convenient that the original venue. Id.
(citing Volkswagen II, 545 F.3d at 315). By applying
this heightened standard, the plaintiff's choice of forum
is given the appropriate deference. Id. (citing
Volkswagen II, 545 F.3d at 315).
to transfer venue “are to be decided based on
‘the situation which existed when suit was
instituted.'” Evolutionary Intelligence, LLC v.
Apple, Inc., No. 6:12-cv-00783, 2013 U.S. Dist. LEXIS
187467, *11 (E.D. Tex. Aug. 27, 2013) (quoting In re EMC
Corp., 501 Fed.Appx. 973, 976 (Fed. Cir. 2013) (quoting
Hoffman v. Blaski, 363 U.S. 335, 343 (1960))).
However, the analysis may consider circumstances that were
“apparent at the time the suit was filed.” In
re EMC Corp., 501 Fed.Appx. at 976.
district court should assess the relevance and materiality of
the information the witness may provide' and where a
party has ‘identified witnesses relevant to [the]
issues [present in a case],  the identification of those
witnesses weighs in favor of [the identifying
party].'” Seven Networks, 2018 U.S. Dist.
LEXIS 146375, at *8 (quoting In re Genentech, Inc.,
566 F.3d 1338, 1344 (Fed.
2009)). “[T]o properly analyze convenience, specific
witnesses should be identified with, at a minimum, a general
statement providing the expected relevant and material
information to the litigation at hand.” Realtime
Data, LLC v. Rackspace US, Inc., 2017 WL 772653, at *10
(E.D. Tex. Feb. 28, 2017).
initial matter, the Court notes that this case could have
been brought in the S.D.N.Y. Peloton does not contest this
point. (Dkt. No. 25 at 2.) Accordingly, the Court focuses its
analysis on the convenience factors to see whether SDNY is a
clearly more convenient forum than EDTX.
parties do not argue that either “the avoidance of
unnecessary problems of conflict of laws” or the
“familiarity of the forum with the law that will govern
the case” factors weigh one way or the other. (Dkt. No.
17 at 14; see Dkt. No. 25 at 11-15 (providing no
discussion of these factors when addressing the public
interest factors).) The Court therefore finds these factors
to be neutral. The Court will address each of the remaining
public and private interest factors below.
The availability of compulsory process to secure the
attendance of witnesses
factor is directed towards unwilling third-party witnesses.
Seven Networks, 2018 WL 4026760, at *7 (citing
Volkswagen II, 545 F.3d at 316). Flywheel identifies
Yu Feng and Christopher Sira, who were inventors
of the asserted patents. (Dkt. No. 17 at 8; U.S. Pat. No. 9,
174, 085 at ; U.S. Pat. No. 9, 233, 276 at .)
However, Feng is a party witness as he currently serves as
Peloton's Chief Technology Officer. (Dkt. No. 25 at 7
(citing Foley Decl. at ¶ 4).) Further, Sira is willing
to attend the trial, making compulsory process unnecessary
for him. (Id. (citing Dkt. No. 25-6 at ¶ 4).)
Accordingly, the Court concludes that Feng and Sira would be
more appropriately considered under other factors and that
they do not provide support for this factor.
also identifies Eric Villency and Joseph Coffey of the
Villency Design Group (hereinafter “VDG”) as
potential witnesses. (Dkt. No. 17 at 9.) However, the Court
concludes that Villency and Coffey do not provide any support
for a transfer to SDNY.
Optics, LLC., a company owned by Villency and Coffey, is
currently asserting U.S. Patent No. 6, 902, 513 (hereinafter
“'513 Patent”) against Peloton in SDNY,
Peloton filed a third-party complaint in that action against
Villency, Coffey, and VDG, which is another company owned by
Villency and Coffey. VR Optics, Dkt. No. 57 at 1-2.
VR Optics, LLC purchased the '513 Patent and then sued
Peloton for infringement in VR Optics. VR
Optics, Dkt. No. 1 at ...