Egoist Judge Alan Albright’s Refusal to Transfer IP Cases Infuriates the Federal Circuit

In Re Juniper Networks, Inc.

SEP 24, 2021 | REPUBLISHED BY LIT: SEP 28, 2021

Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.

O R D E R

Juniper Networks, Inc., petitions for a writ of manda- mus directing the United States District Court for the Western District of Texas to transfer these six actions to the United States District Court for the Northern District of California. We hold that in denying the motion to trans- fer the district court committed legal errors that require that we vacate the order denying transfer and direct that the case be transferred under 28 U.S.C. § 1404(a). Accord- ingly, we grant Juniper’s petition and issue the writ of mandamus.
I
In September 2020, WSOU Investments LLC d/b/a Brazos Licensing and Development (referred to here as “Brazos”) filed seven complaints in the Waco Division of the Western District of Texas charging Juniper, a Delaware corporation headquartered in Sunnyvale, California, with infringing seven different patents that had been assigned to Brazos.1

Juniper moved the district court to transfer the case to the Northern District of California pursuant to 28 U.S.C. § 1404(a). Juniper argued that “whatever ties Brazos has to this District appear to have been created for the purpose of its patent litigation activities in this District.” Juniper pointed out that Brazos “describes itself as a patent asser- tion entity” and that it “does not seem to conduct any business” from its recently opened office in Waco other than filing patent lawsuits.

Juniper further pointed out that the assignment agreement by which Brazos received much of its patent portfolio lists a California address for Brazos, and that only one of the officers listed on its website resides in Texas. Two of Brazos’s officers, its CEO and its president, reside in California and thus would be subject to compulsory process from a district court in the Northern District of California. App. 133.

Juniper asserted that the Northern District of California was a clearly more convenient forum than the Western District of Texas for litigating this case. In a sworn decla- ration, Juniper stated that the accused products were primarily designed, developed, marketed, and sold from Juniper’s Sunnyvale headquarters within the Northern District of California. App. 151.

Juniper noted that potential witnesses who would be expected to testify as to the structure and function of the accused products, as well as the marketing and sale of those products, are located in the Northern District of California, and that Juniper had “identified no employees involved in the design, development, testing, marketing, financing, or sales of the Accused Products who work in Texas.” App. 150–51.

In response, Brazos pointed out that it maintains an office in Waco, within the Western District of Texas, where two persons are employed, and that at the time the complaints were filed, Juniper had a small office in Austin, Texas, also within the Western District of Texas.2

New post: Who is US District Judge Alan Albright, W.D. Texas and Why is He Violating His Judicial Oath? https://t.co/Mdw6SqEfWG

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The district court denied the motion to transfer. The court acknowledged that the six actions could have been brought in the Northern District of California. It then took note of the four private interest factors and four public interest factors that have traditionally been identified as the governing factors in determining whether the transferor or the transferee district is the more convenient.

As the court explained, the private factors are

(1) the relative ease of access to sources of proof;

(2) the availability of compulsory process to secure the attendance of non-party witnesses whose attendance may need to be compelled by court order;

(3) the relative convenience of the two forums for potential witnesses;

and

(4) all other practical problems that make the trial of a case easy, expeditious, and inexpensive.

The four public interest factors are

(1) the administrative difficulties flowing from court congestion;

(2) the local interest in having disputes regarding activities occurring principally within a particular district decided in that forum;

(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 or in the application of foreign law.

See In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc); In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004).

With respect to the relative ease of access to sources of proof between the transferor and transferee districts, the court found that Brazos had not identified any relevant documents located at its Waco office that were entitled to any weight in the transfer decision. As for Juniper’s documents, the court acknowledged that Juniper represented, without contradiction, that the “majority of the physical and documentary evidence relating to the cases at hand, as well as the relevant source code, is stored at its headquarters in California.”

However, the court noted that Juniper had admitted that it stored information in other locations as well (but not in Texas). For that reason, the court concluded that Juniper had not “sufficiently differentiated which documents would be more readily available in the [Northern District of California] compared to the [Western District of Texas].”

The court therefore found that the sources-of-proof factor did not weigh either in favor of or against transfer.

With respect to the availability of compulsory process, the court found that neither party had identified any of its proposed witnesses as unwilling witnesses whose appearance would require the issuance of court process. The court stated that the compulsory process factor “carries little weight when neither party claims any witnesses would be unwilling to testify.”

Curiously, however, the court then determined that the compulsory process factor weighed slightly against transfer.

With respect to the relative convenience of the two forums for potential witnesses, the court noted that Juniper had identified eleven potential party witnesses and four non-party prior-art witnesses, all of whom were located in the Northern District of California, whereas Brazos had identified only one potential witness—one of its employees—who was located in the Western District of Texas.

Nonetheless, the district court concluded that the convenience-to-the-witnesses factor weighed only slightly in favor of transfer.

The district court explained that, in its view, the con- venience of party witnesses and prior art witnesses is enti- tled to little weight. Prior art witnesses, the court stated, are generally unlikely to testify, and party witnesses are within the control of the party and can be compelled to tes- tify wherever the trial is conducted.

The court added that Brazos’s CEO and its president, who would be traveling from California to testify in Texas if the case were not transferred, would not be inconvenienced by the need to travel, because they could work from Brazos’s offices during the time that they would be attending the trial. The court found that the convenience factor weighed in favor of transfer, but only slightly so.

As for which district has the greater local interest in the dispute, the district court recognized that the most relevant consideration bearing on that factor is where the development of the allegedly infringing products occurred.

However, the court concluded that the local interest factor weighed against transfer in this case because “Juniper maintains a substantial presence in both the WDTX and Texas as a whole through its Texas offices, and it leased an office in Austin both at the time of the filing of this lawsuit as well as the filing of the motion to transfer.”

The court also noted that “Brazos is both headquartered in and has its principal place of business in Waco, and its ties to the WDTX are not insignificant.”

And the court found that “Juniper has not shown that the development of the accused products took place entirely within the NDCA.”

Finally, the district court found that the court-congestion factor weighed against transfer because the court in Waco would be likely to reach trial more quickly than would be the case in the Northern District of California.

The court found the remaining factors bearing on transfer to be neutral.

Taking into account the weight it had assigned to each of the factors it considered, the district court concluded that Juniper had not established that the Northern District of California was a clearly more convenient forum for this litigation.

Accordingly, the court denied the transfer motion.

II

Congress has authorized district courts to transfer civil actions “[f]or the convenience of parties and witnesses, [and] in the interest of justice.” 28 U.S.C. § 1404(a). In reviewing transfer decisions, we look to the applicable regional circuit law, in this case the law of the Fifth Circuit, which provides that a motion to transfer venue pursuant to section 1404(a) should be granted if “the movant demonstrates that the transferee venue is clearly more conven- ient[.]”

In re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (quoting Volkswagen, 545 F.3d at 315).

A district court generally enjoys broad discretion in making the transfer determination.

See In re Vistaprint Ltd., 628 F.3d 1342, 1344 (Fed. Cir. 2010).

However, when a district court’s denial of a motion to transfer amounts to a clear abuse of discretion under governing legal standards, we have issued mandamus to overturn the denial of transfer.

See, e.g., In re Samsung Elecs. Co., 2 F.4th 1371 (Fed. Cir. 2021); In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020); In re Hulu, LLC, No. 2021-142, 2021 WL 3278194(Fed. Cir. Aug. 2, 2021); In re Uber Techs., Inc., 852 F. App’x 542 (Fed. Cir. 2021); In re TracFone Wireless, Inc., 848 F. App’x 899 (Fed. Cir. 2021); In re Adobe Inc., 823 F. App’x 929 (Fed. Cir. 2020); see also Volkswagen, 545 F.3d at 315.

Based on a close study of the record in this case, we conclude that the district court clearly abused its discretion in finding that Juniper failed to make the requisite showing to call for transfer of this case to the Northern District of California.

First, as we have previously explained, the relative convenience for and cost of attendance of witnesses between the two forums is “probably the single most important factor in transfer analysis.”

In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009) (quoting Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F. Supp. 2d 325, 329 (E.D.N.Y. 2006)); see Apple, 979 F.3d at 1341; In re Acer Am. Corp., 626 F.3d 1252, 1255 (Fed. Cir. 2010).

In this instance, the district court clearly erred in not giving sufficient weight to the relative convenience of the transferee forum for the potential witnesses, particularly in light of the striking imbalance in the parties’ respective presentations on this factor.

Juniper identified eleven potential party witnesses who were located in the Northern District of California, while Brazos identified only one party witness in the Western District of Texas.

The district court attached little weight to the evidence regarding the party witnesses, however. Citing one of its own prior decisions, the court stated that “party witnesses are generally accorded little weight as they can be compelled by the parties to testify.”

The district court also stated that it “assumes that no more than a few party witnesses will testify live at trial” and that in any event “it is unlikely that all of them will testify.” The court’s assumption that Juniper would not call many party witnesses was not based on any evidence specific to this case.

On the other side of the ledger, only one witness was identified as being located in or near the Western District of Texas, and that witness, a Brazos employee, was not alleged to have information relating to the merits of the infringement claims against Juniper.

As for prior-art witnesses, the court stated that they “are accorded little weight in the analysis as they are generally considered unlikely to testify.” The court again cited one of its own prior opinions as support for that statement.

We have previously rejected the district court’s reliance on the proposition that the convenience-to-the-witnesses factor is attenuated when the witnesses are employees of the party calling them.

See Hulu, 2021 WL 3278194, at *5 (rejecting district court’s position that a party’s ability to compel the testimony of its employees supported giving the location of those witnesses little or no weight under a willing witness factor). We have also rejected the district court’s categorical assumption that defendants are likely to call few if any of the proposed party witnesses or prior-art witnesses that are identified for purposes of supporting transfer motions. See Samsung, 2 F.4th at 1379; In re Ap- ple Inc., 818 F. App’x 1001, 1003 (Fed. Cir. 2020); In re DISH Network, L.L.C., 856 F. App’x 310, 311 (Fed. Cir.2021); Uber, 852 F. App’x at 543.

In Hulu, we also disapproved of the district court’s discounting all of Hulu’s prior art witnesses; we stated that the “categorical rejection of Hulu’s witnesses is entirely untethered to the facts of this case and therefore was an abuse of discretion.” 2021 WL 3278194, at *3.

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The force of Juniper’s showing as to the inconvenience and cost entailed in requiring witnesses to testify at a re- mote forum is particularly strong in light of the very weak showing on that issue made by Brazos.

As we explained in Samsung, “[e]ven if not all witnesses testify, with nothing on the other side of the ledger, the factor strongly favors transfer.” Samsung, 2 F.4th at 1379; see also Hulu, 2021 WL 3278194, at *5.

Second, the district court erred in applying the local interest factor. The court acknowledged that the events forming the basis for Brazos’s infringement claims occurred mainly in the Northern District of California; none occurred in the Western District of Texas. That is sufficient to give the transferee venue a greater localized inter- est in the dispute, which favors transfer.

See Samsung, 2 F.4th at 1380 (transfer favored because most, even if not all, of the underlying research, design, and development of the accused products centered on activity within the trans- feree venue); Acer, 626 F.3d at 1256 (transfer favored be- cause “[t]he company asserting harm and many of the companies alleged to cause that harm are all residents of that district, as are the inventor and patent prosecuting attorneys whose work may be questioned at trial”).

The district court’s conclusion that the local interest factor weighed against transfer was premised on the fact that Juniper had leased a small office in Austin at the time the motion to transfer was filed. But as the district court acknowledged, Juniper’s office in Austin existed “to service a startup company that Juniper acquired which has no connection with the products accused of infringement in these cases.”

Juniper’s general presence in the Western District of Texas is not enough to establish a local interest in that district comparable to that of the Northern District of California.

As we explained in In re Apple, this factor “most notably regards not merely the parties’ significant connections to each forum writ large, but rather the ‘significant connections between a particular venue and the events that gave rise to a suit.’” 979 F.3d at 1345 (quoting Acer, 626 F.3d at 1256) (emphasis in Apple).

In that case, we held that the district court “misapplied the law to the facts” when it “heavily weigh[ed]” the defendant’s “general contacts with the forum that are untethered to the law- suit.” Id.; see also In re Google LLC, 855 F. App’x 767, 768 (Fed. Cir. 2021) (“Google’s mere presence in the Western District of Texas insofar as it is not tethered to the events underlying the litigation is not entitled to weight in ana- lyzing the local interest factor in this case.”); DISH Net- work, 856 F. App’x at 311; Samsung, 2 F.4th at 1380.

Aside from Juniper’s general presence in Austin, the district court relied on the fact that Brazos was incorporated in Texas and maintained its principal office in Waco, within the Western District of Texas. But Brazos’s status as a Waco-based entity is not entitled to significant weight.

Brazos’s presence in Waco appears to be both recent and relatively insubstantial. The office was established only a few months before the complaints against Juniper were filed, and the activities of the office are largely tied to bringing lawsuits in that court. Brazos has only two employees who work from Waco, one of whom is its in-house attorney responsible for litigation. The principal officers of Brazos are located in California.

We have noted in other mandamus cases that little or no weight should be accorded to a party’s “recent and ephemeral” presence in the transferor forum, such as by establishing an office in order to claim a presence in the district for purposes of litigation.

See In re Microsoft Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011); see also Samsung, 2 F.4th at 1378; In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010) (party shared office space in the transferor district; its presence in Texas “appears to be re- cent, ephemeral, and an artifact of litigation”); In re Apple Inc., 374 F. App’x 997, 999 (Fed. Cir. 2010) (“[T]he status of Personal Audio, LLC, as a Texas corporation is not entitled to significant weight, inasmuch as the company’s presence in Texas appears to be both recent and ephemeral— its office is apparently the office of its Texas litigation coun- sel, and it appears not to have any employees in Texas.”).

Brazos’s presence in the Western District of Texas is insubstantial compared to the presence of Juniper in the Northern District of California.

See Microsoft, 630 F.3d at 1364.

Moreover, it appears that the relationship between the Texas forum and Brazos is merely the product of pur- suing litigation in a preferred forum and is entitled to little weight. Cf. In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1337 (Fed. Cir. 2009) (characterizing pre-litigation transfer of documents as “a fiction which appears to have been cre- ated to manipulate the propriety of venue” and concluding that the denial of transfer “ha[d] no legally rational basis” as a result).

Third, the district court erred in its assessment of the availability of sources of proof. Juniper submitted a sworn declaration from its Senior Director of Strategy & Corpo- rate Development attesting to the fact that Juniper “stores the majority of its documentary evidence relevant to the Accused Products . . . at its Sunnyvale headquarters.” App. 151.

The district court faulted the declaration as not being specific enough, stating that “

That criticism is unjustified.

The declaration explained that the evidentiary records maintained at Juniper’s Sunnyvale headquarters included “records relating to the research and design of the Accused Products, source code, and marketing, sales, and financial information for the Accused Products.” App. 151. Moreover, while Juniper maintains evidence on servers in other locations, it is un- disputed that no Juniper evidence relating to the facts of these lawsuits is located in the Western District of Texas.

The only evidence that was identified as being located in that district belonged to Brazos. And as to that evidence, the district court found that it was not sufficiently relevant to be entitled to any weight at all.

We have held that the fact that some evidence is stored in places other than either the transferor or the transferee forum does not weigh against transfer. See In re Toyota Motor Corp., 747 F.3d 1338, 1340 (Fed. Cir. 2014); In re HP Inc., 826 F. App’x 899, 902 (Fed. Cir. 2020).

What matters is the relative access to sources of evidence in the two competing forums. See Radmax, 720 F.3d at 288 (noting “the question is relative ease of access, not absolute ease of access”) (emphasis omitted).

And while electronic storage of documents makes them more widely accessible than was true in the past, that does not make the sources-of-proof factor irrelevant.

See Volkswagen, 545 F.3d at 316 (“That access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous.”). Based on the difference between the two venues with respect to the sources of proof, the district court should have weighed that factor in favor of transfer.

Fourth, the court erred in finding that the potential need for recourse to compulsory process weighed against transfer. The sole basis for the district court’s finding on that factor was the parties’ failure to identify any unwilling witnesses who would need to be subpoenaed. That no party expressly identified any witness as unwilling to testify, however, does not cut in favor of conducting this litigation in the Western District of Texas rather than in the North- ern District of California. The district court’s analysis of the compulsory process factor confuses “[the] burden of demonstrating that the transferee venue is clearly more convenient with the showing needed for a conclusion that a particular private or public interest factor favors trans- fer.” Apple, 979 F.3d at 1340. Taking the court’s findings

IN RE: JUNIPER NETWORKS, INC. 13
on their own terms, this factor should be regarded as neu- tral at most, and certainly not as weighing against trans- fer. In fact, because Juniper identified several non-party potential witnesses in the Northern District of California, and Brazos identified none in the Western District of Texas, it is puzzling why this factor was not treated as weighing at least slightly in favor of transfer.

Finally, the district court’s conclusion that the court- congestion factor weighed against transfer rested solely on Brazos’s assertion that the Texas forum had a faster median time to trial than the California forum.

The district court, however, did not explain how that difference in the prospective time to trial was caused by an appreciable difference in the degree of docket congestion between the two forums.

We have noted that the Western District of Texas and the Northern District of California show no significant differences in caseload or time-to-trial statistics.

See Samsung, 2 F.4th at 1380–81; Apple, 979 F.3d at 1343–44.

The district court based its analysis on scheduled trial dates. But we have held that it is improper to assess the court congestion factor based on the fact that the Western District of Texas has employed an aggressive scheduling order for setting a trial date.

See Samsung, 2 F.4th at 1380–81; Apple, 979 F.3d at 1344; see also Hulu, 2021 WL 3278194, at *5 (determining that the court congestion factor was neutral after considering the close similarity in the number of cases per judgeship and the actual average time to trial in the Western District of Texas and the Northern District of California, and noting that the “consideration that the district court assumed tipped the scales toward denying transfer was its own ability to set an early trial date and bring a case to trial earlier than district-wide statistics would suggest”);

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Adobe, 823 F. App’x at 932 (“The factor concerns whether there is an appreciable difference in docket congestion between the two forums Nothing about the court’s general ability to set a schedule directly speaks to that issue.”); Samsung, 2 F.4th at 1380–81.

In any event, we do not regard the relative speed with which this case might be brought to trial in the two dis- tricts to be of particular significance. See Samsung, 2 F.4th at 1380–81.

We have described the court congestion factor as the “most speculative” of the factors bearing of the trans- fer decision. Genentech, 566 F.3d at 1347; see also Apple, 979 F.3d at 1344 n.5. And when other relevant factors weigh in favor of transfer or are neutral, “then the speed of the transferee district court should not alone outweigh those other factors.” Genentech, 566 F.3d at 1347.

Beyond that, Brazos is not engaged in the manufacture or sale of products that practice the asserted patents. Instead, Brazos describes itself as a company that “help[s] inventors and patent owners maximize the full potential of their patents.” App. 262.

It does not suggest it is in need of a quick resolution because its position in the market is being threatened.

Even if the district court’s projection of the likely time to trial in the two venues is accurate, the court did not point to any reason that a more rapid disposition of the case that might be available in Texas is worthy of important weight.

See In re Morgan Stanley, 417 F. App’x 947, 950 (Fed. Cir. 2011).

In sum, this case is a very close cousin of our recent decisions in Samsung and Hulu, and the disposition of this case is largely dictated by the disposition of those cases.

In those cases, as in this one, the center of gravity of the action was clearly in the transferee districts, not the Western District of Texas. And as in those cases, several of the most important factors bearing on the transfer decision in this case strongly favor the transferee court, and no factor favors retaining the case in the transferor court.

See In re Nintendo Co., 589 F.3d 1194, 1198 (Fed. Cir. 2009) (“This court has held and holds again in this instance that in a case featuring most witnesses and evidence closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer.”).

Accordingly,

IT IS ORDERED THAT:

The petition is granted.

The district court’s order denying Juniper’s motion to transfer is vacated, and the district court is directed to grant the transfer motion.

September 24, 2021

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner
Clerk of Court

In Re Intel Corporation

SEP 27, 2021 | REPUBLISHED BY LIT: SEP 28, 2021

Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.

O R D E R

Intel Corporation and Samsung Electronics Co., Ltd. et al. (Samsung) each petition this court for a writ of mandamus directing the United States District Court for the Western District of Texas to transfer these related cases to the United States District Court for the Northern District of California. Demaray LLC opposes and moves for leave to file a sur-reply.

Demaray has sued both Intel and Samsung in the Western District of Texas for infringement of two patents directed to the configuration and use of semiconductor fabrication reactors. Although Intel and Samsung have been sued separately, they are closely aligned in these cases be- cause the reactors that form the basis of Demaray’s infringement allegations are supplied to Intel and Samsung by Applied Materials, Inc. Applied is headquartered in the Northern District of California but has a large manufacturing facility in Austin, Texas, in the Western District of Texas. Austin is also the location of Samsung’s domestic semiconductor fabrication facilities that are accused of infringement.

Although Intel has identified employees knowledgeable about its account with Applied and relevant financial information in the Northern District of California, it appears that Intel’s fabrication operations and employees knowledgeable about the research and development of the accused reactor configurations are out- side both the Northern District of California and the West- ern District of Texas.

Demaray filed these actions in the Western District of Texas on July 14, 2020. A month later, Applied filed an action in the Northern District of California seeking a declaratory judgment of non-infringement of the same two patents that Demaray had asserted against Samsung and Intel.

Applied moved the California court to enjoin the two suits against its customers. The California court denied that motion and dismissed Allied’s declaratory judgment action.*

In October 2020, Applied filed a petition with the Patent and Trademark Office seeking inter partes review of the patents. In that petition, Allied named Intel and Samsung as real parties in interest. On May 11, 2021, the Patent Office granted the petitions and instituted review. Those proceedings are ongoing before the Patent Office.

In November 2020, Samsung and Intel moved the district court in the Western District of Texas to transfer these cases to the Northern District of California. On July 1, 2021, the court denied those motions.

In two separate orders, the court ruled that neither Samsung nor Intel had established that the Northern District of California was a clearly more convenient forum than the Western District of Texas, the plaintiff’s chosen forum.

In the Samsung case, the district court recognized that some Samsung and Applied employees and two inventors are located in the Northern District of California. Nonetheless, the court regarded the convenience-of-the-wit- nesses factor as neutral.

The court observed that Samsung employees in Austin “are knowledgeable about the allegedly infringing process and are qualified to testify about those processes at trial.” App. 9.

In addition, the court found that “Applied’s Austin manufacturing personnel are involved with Samsung’s accused use of the claimed reactor configurations and Applied’s Austin office provided support staff for the Samsung relationship.” App. 8–9.

Furthermore, the court pointed out that other witnesses, including Samsung employees and inventors, would be coming from outside both districts.

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The district court also found that the compulsory-process factor was neutral. The court pointed out that Applied had indemnity obligations to the defendants and could be counted on to appear. The court also found that neither venue had an advantage with regard to sources of proof be- cause the accused reactors and relevant documents of Samsung and Applied were in and/or accessible from the Western District of Texas.

The court added that the Western District of Texas had a slight advantage with regard to the local interest factor, given that Samsung’s only domes- tic fabrication facilities were in Austin. The court additionally speculated that if Samsung’s case were transferred to California, the California district court would likely stay the litigation pending completion of the inter partes reviews, which would delay the trial.

Having concluded that Demaray’s suit against Sam- sung should remain in the Western District of Texas, the district court then turned to Intel’s motion. The court found that judicial economy considerations weighed against transfer of the case against Intel.

The court observed that the two cases had been coordinated for all pre-trial proceedings and found that having the two cases decided by two different district courts would be inefficient, given that they involve the same patents and the same underlying technology.

The court additionally found that it could likely resolve the Intel case faster than the California court. The district court was also not persuaded that the private interest factors favored transfer in light of the presence of Applied’s employees and evidence in the Western District of Texas. The court accordingly also denied Intel’s motion.

The standard for mandamus relief is demanding. A petitioner must establish, among other things, that it has a clear and indisputable legal right to relief. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381 (2004) (citation omit- ted). We have recognized that district courts enjoy “broad discretion in transfer decisions pursuant to 28 U.S.C. § 1404(a).” In re Vistaprint Ltd., 628 F.3d 1342, 1344 (Fed. Cir. 2010). On mandamus, we review only for “clear abuses of discretion that produce patently erroneous results.” In re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008) (en banc). We cannot say that standard is met here.

To be sure, the district court erred in weighing against transfer the likelihood that the California court would stay proceedings pending the Patent Office’s review.

The Fifth Circuit has held that only “in rare and special circumstances” would “delay” or “prejudice” resulting from transfer be “relevant in deciding” a motion.

In re Horseshoe Ent., 337 F.3d 429, 434 (5th Cir. 2003) (internal quotation marks omitted).

The possibility of a stay pending the Patent Office’s review after transfer falls far short of satisfying that standard.

Moreover, the district court should not have regarded the possibility that the transferee court would issue a stay pending inter partes review as weighing against transfer.

The inter partes review process, like other post-issuance re- view proceedings, was designed to give the agency an opportunity to correct its mistakes, to give courts the benefit of the agency’s consideration of the effect of prior art on pa- tents being asserted in litigation, and to reduce the burden of litigation on the parties and the courts.

See Murata Mach. USA v. Daifuku Corp., 830 F.3d 1357, 1362 (Fed. Cir. 2016); NFC Tech. LLC v. HTC Am., Inc., No. 2:13-cv- 1058, 2015 WL 1069111, at *2, 4–5 (E.D. Tex. Mar. 11, 2015); see also Virtual Agility Inc. v. SalesForce.com, Inc., 759 F.3d 1307, 1314 (Fed. Cir. 2014); In re Etter, 756 F.2d 852, 857 (Fed. Cir. 1985); Gould v. Control Laser Corp., 705 F.2d 1340, 1342 (Fed. Cir. 1983) (“One purpose of the reexamination procedure is to eliminate trial of that issue . . . or facilitate trial of that issue by providing the district court with the expert view of the PTO ”).

Nonetheless, Intel and Samsung have not shown a clear and indisputable right to transfer.

Mindful of the standard of review, we are not prepared to second-guess the district court’s findings that Samsung’s and Applied’s operations within the Western District of Texas are likely to be important sources of evidence and witnesses in Samsung’s case.

The district court also reasonably found that keeping the cases against Samsung and Intel before one court would preserve judicial economy and minimize the potential for inconsistent judgments. And we cannot say that Intel has shown that the transferee venue is so clearly more convenient as to override those benefits in its case.

The petitioners make much of Applied’s pending declaration judgment suit in the Northern District of California, but that suit was filed after these complaints, and we see no clear error in the district court’s assessment of the pendency of that case based on the information available at the time of its decision on the transfer motions.

Accordingly,
IT IS ORDERED THAT:
(1) The petitions are denied.
(2) The motion to file a sur-reply is denied.

September 27, 2021 Date FOR THE COURT

/s/ Peter R. Marksteiner
Peter R. Marksteiner Clerk of Court
s31

We thought Judge Alan Albright was an IP judge who is too busy upsetting everyone in the Fed Circuit by his zealous advocacy and failure to transfer cases to the right jurisdiction. We were wrong. He’s also corruptly phoning law firms to file for attorney fees in foreclosures. pic.twitter.com/I5p914tIno

— LawsInTexas (@lawsintexasusa) July 13, 2021

In Re Google Inc.

SEP 27, 2021 | REPUBLISHED BY LIT: SEP 28, 2021

Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.

O R D E R

Plaintiff Sonos, Inc., filed this patent infringement case against defendant Google LLC in the Waco Division of the United States District Court for the Western District of Texas. Google moved to transfer the case to the Northern District of California. The district court denied the motion. The court first held that a forum selection clause in a 2013 agreement between the parties was inapplicable to the pa- tent infringement action before it. The court then held that Google had failed to make a showing sufficient to justify transferring the case under 28 U.S.C. § 1404(a).

Google now petitions for a writ of mandamus directing the district court to transfer the case. We conclude that the district court’s refusal to transfer the case pursuant to section 1404(a) constituted a clear abuse of discretion. We therefore grant mandamus directing the court to transfer this case to the Northern District of California. Because we conclude that the district court misapplied the factors bearing on the transfer decision, it is unnecessary for us to address Google’s argument concerning the applicability of the forum selection clause in the 2013 agreement between the parties.

I A

Google presented the following facts in support of its transfer motion: Two of the four inventors work for Sonos at its principal place of business in Santa Barbara, California. A third inventor, who no longer works for Sonos, also resides in California. The fourth inventor, who is not asso- ciated with Sonos, lives in Boston, Massachusetts. Sonos does not have any offices or employees in Texas.

Google’s headquarters are in the Northern District of California. Sonos also maintains offices there.

Google identified a number of employee witnesses who can testify regarding the development, functionality, and marketing of the accused products. Several of those witnesses are lo- cated in the Northern District of California and none are located in Texas. Google also identified witnesses in the Northern District of California who are expected to testify about prior art, and it noted several previous cases in which it had called such witnesses to testify during trial. Google added that because three of the named inventors are located in California, they could be compelled to testify by the district court in the Northern District of California, but not by the district court in the Western District of Texas.

Sonos responded that Google maintains a large campus in Austin, Texas, within the Western District of Texas. Sonos suggested that Google’s employees from Austin might have information material to the dispute in this case. Sonos also noted that there are several current and former Google employees in New York and Massachusetts who could be potential witnesses, and that they are located closer to the Western District of Texas than to the North- ern District of California. Sonos added that Andrew Greene, the former head of Google’s Partnerships & Alli- ances for Google Cloud, lives in Austin. Based on his title, Sonos speculated that Mr. Greene might have relevant in- formation concerning the integration of third-party appli- cation technology that is pertinent to this case. In addition, Sonos noted that Google stores documents on data centers across the country, including in a data center in Midlo- thian, Texas, which is outside of the Western District of Texas but is within 100 miles of the federal courthouse in Waco, Texas.

The district court analyzed Google’s transfer motion by applying a set of private- and public-interest factors iden- tified by the United States Court of Appeals for the Fifth Circuit in In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) (en banc) (“Volkswagen II”).1

EDITED: Can US Courts Police Themselves – HELL NO!

The judiciary moved 4 years ago to address a culture of silence around sexual harassment in judicial chambers. The judiciary resists legislation offering more protections, questions persist ABOUT OCHLOCRACY AND OUTLAWS IN ROBES pic.twitter.com/3CNWTonaqz

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After reviewing those factors, the district court concluded that Google had failed to show that the Northern District of Cal- ifornia was clearly more convenient for trial than the West- ern District of Texas. The district court therefore denied Google’s motion to transfer.

B

At the outset, the district court found that this action could have been brought in the Northern District of California, a necessary predicate for the court to consider transferring the case to that district. The court then made the following findings regarding the transfer decision:

Based on its view that Google was not currently storing evidentiary documents in the Northern District of California and that a data center within 100 miles of the Waco courthouse contains relevant information, the court found that the ease of access to sources of proof weighs against transfer.

The district court recognized that testimony from the Google employees in the Northern District of California who were responsible for developing the accused products and had knowledge regarding their functionality was “undoubtedly relevant.” And the court also found it unlikely that Sonos would call as witnesses the large number of Google employees it identified as working in Austin.

The court noted that Sonos had not identified those witnesses with any further specificity. Nonetheless, the court found that the Western District of Texas was a more convenient forum for the non-party witnesses who were willing to testify.

On that issue, the court relied on its finding that the Texas forum would be more convenient for four former

Trending @Twitter is a statement from @GregAbbott_TX sayin’ he’s going to arrest the #Dems when they return on their private jet to #Texas. This Outlaw in a Robe should suffer the same fate for managing to violate his judicial oath within 3 months of Senate confirmation @uscourts pic.twitter.com/TqK8BAAU7M

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Google employees who were located in New York and Mas- sachusetts and one of the inventors who was located in Massachusetts.

The district court explained that the witnesses in the northeast “would be more inconvenienced traveling more than twice the distance—over 1000 additional miles—to the NDCA compared to the WDTX.” By contrast, the district court found that the convenience and cost of attendance for party witnesses located in California is entitled to little weight because party witnesses are within the control of the party calling them.

In addressing the compulsory process factor, Google identified eight non-party individuals and two entities in the Northern District of California as potential prior-art witnesses, and Sonos identified two potential prior-art wit- nesses in the Western District of Texas.

The district court, however, did not regard that factor as bearing on the transfer decision. Citing one of its own prior decisions, the court expressed the view that prior-art witnesses are “generally unlikely to testify at trial.”

For that reason, the court held, the location of prior-art witnesses should be accorded little weight. The court added that Google’s decision to call prior-art witnesses in previous cases did not “dissuade the Court from its general practice of ascribing little weight to such witnesses.”

As for the remaining potential non-party witnesses, the district court gave no weight to the fact that one of the inventors lived in California because Sonos represented that the inventor was willing to testify without being subpoenaed.

The court also found that Sonos had failed to identify any potential third-party witnesses who were unwilling to testify voluntarily. However, the court gave decisive weight to the fact that former Google employee Andrew Greene was located in Austin and was therefore subject to the court’s compulsory process.

Although Google stated that Mr. Greene had not worked on the partnership account involving Sonos, the court concluded that, in light of Mr. Greene’s former title as head of “Partnerships & Alliances, Google Cloud,” it was likely that he would have in- formation concerning the “integration of third-party applications.”

The district court acknowledged that the Northern District of California had a local interest in resolving this case because of Google’s presence in that district and Sonos’s lack of any presence in the Western District of Texas. How- ever, because Google had a significant presence in the Western District of Texas by virtue of its campus in Austin, the district court weighed the local interest factor only slightly in favor of transfer.

Finally, the district court found that the court congestion factor weighed against transfer. In making that finding, the court relied on a comparison of the median time-to-trial statistics for the transferor and transferee districts.2

II

Our review is governed by the law of the regional circuit, which in this case is the Fifth Circuit.

See In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008).

Under Fifth Circuit law, the governing principles are well settled. Section 1404(a) authorizes a court to transfer a civil action “[f]or the convenience of parties and witnesses, in the interest of justice[.]”

Fifth Circuit law provides that a motion to transfer venue pursuant to section 1404(a) should be granted if “the movant demonstrates that the transferee venue is clearly more convenient.”

In re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (quoting Volkswagen II, 545 F.3d at 315) (internal quotation marks omitted).

A district court enjoys broad discretion in making a transfer determination. See In re Vistaprint Ltd., 628 F.3d 1342, 1344 (Fed. Cir. 2010). That discretion, however, is subject to limits. When a district court’s denial of a motion to transfer clearly contravenes governing legal standards, we have issued mandamus to overturn the denial of transfer. See, e.g., In re Samsung Elecs. Co., 2 F.4th 1371 (Fed. Cir. 2021); In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020).

A

The district court acknowledged that the convenience of the witnesses is probably the single most important factor in transfer analysis. See In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009). However, the court significantly qualified that observation. Citing one of its own prior opinions, the court stated that “[t]he convenience of party witnesses is given little weight.”

Google identified a number of potential witnesses located in the Northern District of California, including wit- nesses who were responsible for developing the accused products and functionalities.

The district court noted that even though those witnesses’ potential testimony was “undoubtedly relevant,” the court stated that “the vast major- ity [of those witnesses] are party witnesses,” and that the court “does not assign great weight to these witnesses be- cause Google can compel their testimony.”

While it is true that the witnesses in the Northern District of California are largely affiliated with the parties, that does not negate the inconvenience and cost to those individuals to travel a significant distance to testify. We have rejected the district court’s reliance on the fact that a party’s ability to compel the testimony of its employees supports assigning little or no weight to the convenience and cost to those witnesses.

See In re Juniper Networks, Inc., No. 2021-160, slip op. at 8 (Fed. Cir. Sept. 27, 2021); In re Hulu, LLC, No. 2021-142, 2021 WL 3278194, at *5 (Fed.
Cir. Aug. 2, 2021). As we explained in Hulu: “Although an employer’s cooperation in allowing an employee to testify may diminish certain aspects of inconvenience to the employee witness . . . it hardly eliminates the inconvenience” of requiring the employee to travel. 2021 WL 3278194 at
*5; see also Samsung, 2 F.4th at 1379 (holding that a dis- trict court’s § 1404(a) analysis “must consider” the convenience of “possible party witnesses”).

The district court considered the “cost of attendance for willing witnesses” factor to weigh against transfer primarily due to the convenience of four former Google employees and the third-party inventor of two of the asserted patents, all of whom are located in the northeastern United States.

The court found that those witnesses would be more inconvenienced by having to travel to the Northern District of California than to the Western District of Texas.

In making that assessment, the district court relied on the Fifth Circuit’s “100-mile rule.” The Fifth Circuit has stated that “

Volkswagen II, 545 F.3d at 317 (quoting In re Volkswagen AG, 371 F.3d 201, 204–05 (5th Cir. 2004) (“Volkswagen I”)).

The rationale behind that rule is that “the task of scheduling fact witnesses so as to minimize the time when they are removed from their regular work or home responsibilities gets increasingly difficult and complicated when the travel time from their home or work site to the court facility is five or six hours one-way as opposed to 30 minutes or an hour.” Volkswagen I, 371 F.3d at 205.

We have been mindful of that rationale for that rule, and we have rejected a “rigid[]” application of the rule when “witnesses will be required to travel a significant distance no matter where they testify” and when all witnesses would be inconvenienced by having to leave home to attend trial. Genentech, 566 F.3d at 1344.

In light of the purpose underlying the rule, the inquiry should focus on the cost and inconvenience imposed on the witnesses by requiring them to travel to a distant forum and to be away from their homes and work for an extended period of time.

Moreover, even though the distance from the north-eastern United States to California is greater than the distance to Waco, Texas, the record before the district court does not show that the total travel time in each case is significantly different.

There is no major airport in the Waco Division of the Western District of Texas, and the Waco courthouse is more than 100 miles from the nearest airport with direct flights to the northeast U.S.

See App. 1022.

In this regard, time is a more important metric than distance.

Our cases have emphasized that when there are numerous witnesses in the transferee venue and the only other witnesses are far outside the plaintiff’s chosen forum, the witness-convenience factor favors transfer. In Genentech, for example, we stated that where “a substantial number of material witnesses reside within the transferee venue . . . and no witnesses reside within the” transferor venue, a district court “clearly err[s] in not determining” the convenience of willing witnesses “to weigh substantially in favor of transfer.” Genentech, 566 F.3d at 1345.

In recent cases, we have applied those principles in circumstances not materially different from those in this case.

In In re Apple, 979 F.3d at 1342, the petitioner argued that the district court in the Western District of Texas erred in not finding the witness-convenience factor to favor transfer to the Northern District of California because a number of the parties’ witnesses were located there and no witness was located in Texas.

The district court had given more weight to the fact that the inventors and patent prosecutor residing in New York would “need to travel a greater distance to reach” the Northern District of California than the Western District of Texas. Id. In rejecting the district court’s analysis, we explained that those witnesses “will likely have to leave home for an extended period” whether or not the case was transferred, and thus would “only be slightly more inconvenienced by having to travel to California than to Texas.” Id. (internal quotation marks omitted).

Likewise, in In re TracFone Wireless, Inc., 852 F. App’x 537, 539 (Fed. Cir. 2021), the defendant identified a sub- stantial number of witnesses in the transferee venue in Florida, while no witness was located in the Western District of Texas. The district court nonetheless held that the willing-witness factor weighed against transfer on the ground that a transfer would double the distance traveled by potential non-party witnesses in Arizona and Minnesota and therefore would double their inconvenience. Id.

We held that, “[a]s in Apple, the district court here clearly misapplied the law in finding that any inconvenience to these individuals outweighed the convenience of having several party witnesses be able to testify at trial without having to leave home.” Id. at 540.

This case fits squarely within that line of precedent.

The district court here found that the willing witness factor weighed against transfer. Yet it based that finding not on any witnesses who were located in the Western District of Texas, but rather on the presence of potential witnesses who live far outside both venues in New York and Massachusetts.

As was the case in Apple and TracFone, the district court’s application of the 100-mile rule would result in all identified witnesses having to travel away from their home and work in order to testify in Texas, which would “produce results divorced from” the rule’s underlying rationale. TracFone, 852 F. App’x at 539.

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While Sonos listed a large number of potential wit- nesses from Google’s Austin campus, the district court noted that Sonos did not indicate with specificity what relevant evidence any of those witnesses would have to offer. Even from the perspective of the district court, Sonos’s list of Google employees therefore did not buttress its claim for retaining the case in the Western District of Texas.

For those reasons, we agree with Google that the district court abused its discretion by not weighing the convenience-to-witnesses factor strongly in favor of transfer.

B

Another factor that we have emphasized as important in transfer analysis is the value of having localized interests adjudicated at home. Google argues that the district court abused its discretion in analyzing this factor. We agree.

Although the district court properly weighed the local interest factor in favor of transfer, it held that Google’s presence in the Western District of Texas lessened the importance of that factor. That was error.

The district court did not find that Google’s operations in the Western District of Texas had any connection to the events giving rise to this case. Rather, the district court merely relied on Google’s general presence in that forum district. As such, the court failed to conduct the proper inquiry.

See Apple, 979 F.3d at 1345 (noting that this factor “most notably re- gards the ‘significant connections between a particular venue and the events that gave rise to a suit’” (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010) (em- phasis in Apple)).

The district court concluded, in essence, that Google had sufficient connections to Austin to make it suitable to try the case in the Western District of Texas. Without further inquiry into the particular events giving rise to the case, however, the district court’s analysis “improperly conflate[d] the requirements for establishing venue under 28 U.S.C. § 1400(b) and the requirements for establishing transfer under § 1404(a).” Apple, at 979 F.3d at 1346.

Because the accused products were designed and developed in the transferee venue and are not related to Google’s presence in Texas, we agree that the local interest factor should have been weighted strongly in favor of transfer. See id. at 1345.

C

None of the remaining factors support the district court’s conclusion that Google failed to show that the Northern District of California is a clearly more convenient forum for trial than the Western District of Texas.

1. In concluding that the sources-of-proof factor disfavored transfer, the district court reasoned that: (1) Google no longer maintains evidentiary documents in the North- ern District of California;

(2) Google’s evidentiary records are stored in data centers located around the country;

(3) one of those data centers is located in Midlothian, Texas, in the Northern District of Texas, while no such center is located in the Northern District of California;

and

(4) the relative proximity of the data center to the Western District of Texas makes accessing those electronic records from the Western District of Texas easier than it would be if the case were transferred.

Neither that reasoning nor the facts underlying it support the district court’s conclusion.

Google’s declaration, on which the district court relied, cannot fairly be read as constituting an admission that Google does not keep sources of proof at its headquarters in the transferee venue. Google stated that “documents in Google’s possession about its products and services are normally created and maintained by the employees working on those products and services,” and because “[t]he employees with relevant knowledge of this litigation are located primarily in the San Francisco Bay Area . . . the relevant documents in this case would be created and maintained in the San Francisco Bay Area.”

App. 625.

Nothing in that or any other representation that Google made suggests that Google no longer maintains relevant records in its offices in the Northern District of California.

Nor does the fact that Google stores documents in electronic form at data centers around the country weigh in fa- vor of holding trial in Texas. We have held that the fact that some evidence is stored in places outside both the transferor and the transferee forums does not weigh against transfer.

See In re Toyota Motor Corp., 747 F.3d 1338, 1340 (Fed. Cir. 2014); In re HP Inc., 826 F. App’x 899, 902 (Fed. Cir. 2020).

There is therefore no sound basis to weigh the sources of proof factor against transfer; if anything, that factor weighs in favor of transfer.

2. In holding that its ability to compel unwilling wit- nesses provided a comparative advantage for the trans- feror forum over the transferee forum, the district court categorically rejected the argument that the California court should be favored because it has subpoena power over several third-party prior-art witnesses who are located in the Northern District of California. Despite Google’s his- tory in other cases, the court assumed that it was unlikely that prior-art witnesses would be called in this case. For that reason, the court held, those witnesses were entitled to little weight. The court also weighed against transfer the fact that Google had failed to come forward with evidence indicating that those witnesses were unwilling to testify.

The district court’s conclusion on that issue cannot be supported by the reasons provided.

Hulu recently disapproved of the rejection of prior-art witnesses under circumstances similar to those in this case. See 2021 WL 3278194, at *3. As Google did here, Hulu identified prior-art witnesses it expected to call at trial. In Hulu, as in this case, the district court substituted its own assumption that prior-art witnesses were unlikely to testify at trial in place of any specific reason to believe that those identified potential witnesses would not testify.

Hulu held that such a categorical rejection of those wit- nesses entirely untethered to the facts of the particular case was an abuse of discretion. Id. Hulu also rejected the proposition, adopted by the district court in this case, that the compulsory process factor is irrelevant unless the wit- nesses in question have expressly indicated an unwilling- ness to testify voluntarily. Id. at *4.

The court therefore erred in not giving weight to Google’s prior-art witnesses.

The district court found the potential testimony of Google’s former executive Andrew Greene to be “the decisive element” that “tips [the compulsory-process] factor against transfer.” Sonos, however, was not at all specific about what testimony it expected to elicit from Mr. Greene, or even if he possesses knowledge of the facts relevant to this infringement action. Sonos’s only support for the potential relevance of Mr. Greene’s testimony is what appears to be Mr. Greene’s “LinkedIn” page, which states that he was “Head of Partnerships & Alliances, Google Cloud” for three and one-half years between 2016 and 2019. Appx1829.

The likelihood that Mr. Greene would provide relevant evidence for Sonos is thus highly speculative. And even without second-guessing the district court’s conclusion in that regard, we cannot say that the district court’s ability to compel him to testify under the circumstances of this case is entitled to “decisive weight.”

3. With respect to the court-congestion factor that the district court held to weigh against transfer, we have held that when other relevant factors weigh in favor of transfer or are neutral, “then the speed of the transferee district court should not alone outweigh all of those other factors.” Genentech, 566 F.3d at 1347.

Where, as here, the district court has relied on median time-to-trial statistics to support its conclusion as to court congestion, we have characterized this factor as the “most speculative” of the factors bearing on the transfer decision. Id.; see also Apple, 979 F.3d at 1344 n.5. Under the approach to this factor we adopted in Genentech, the district court’s speculation about what might happen with regard to the speed of adjudication is plainly insufficient to warrant keeping this case in the Texas forum given the striking imbalance favoring transfer based on the other factors.3

WHAT’S NEW HERE? NADA. #txlege
How Judge Albright’s Transfer Denials Riled The Fed. Circ. The Federal Circuit has issued numerous rulings taking busy Western District of Texas Judge Alan Albright to task for refusing to transfer patent cases elsewhere. https://t.co/Me80Jj1kcw pic.twitter.com/ulioweSWvg

— LawsInTexas (@lawsintexasusa) September 22, 2021

III

In sum, as in other recent cases in which this court has granted mandamus on the issue of transfer, the center of gravity of this action is clearly in the transferee district, not in the Western District of Texas.

And as in those cases, several of the most important factors bearing on the transfer decision strongly favor the transferee court, and no factor favors retaining the case in the transferor court.

See In re Nintendo Co., 589 F.3d 1194, 1198 (Fed. Cir. 2009) (“This court has held and holds again in this instance that in a case featuring most witnesses and evidence closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer.” (citation omitted)).

We therefore grant Google’s petition directing transfer of the case.

Accordingly,

IT IS ORDERED THAT:

The petition is granted. The district court’s order denying Google’s motion to transfer is vacated, and the dis- trict court is directed to grant the transfer

Google’s motion to waive the requirements of Fed- eral Circuit Rule 25.1(d)(1) (ECF No. 4) is granted. ECF 3 is accepted for filing.

September 27, 2021

FOR THE COURT

/s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court

cc: United States District Court for the Western District of Texas