N OTE : This order is nonprecedential

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# United States **Court of Appeals**  **for the Federal Circuit**

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In re : CLOUDFLARE, INC., Petitioner

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2022

- 167

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On Petition for Writ of Mandamus to the United States District Court for the Western District of Texas in No. 6:21

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cv

- 00261

- ADA

- DTG, Judge Alan D. Albright.

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ON PETITION AND MOTION

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Before D YK , R EYNA , and T ARANTO , Circuit Judges

. R EYNA , Circuit Judge

. O R D E R
Cloudflare, Inc. petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to transfer this patent infringement caseto the United States District Court for the Northern District of California. Sable Networks, Inc. and Sable IP, LLC (collectively, “Sable”) oppose the petition.
Sable filed the present action against Cloudflare alleging infringement of patents associated with routers managing computer network data flows. Cloudflare moved pursuant to 28 U.S.C. § 1404(a) to transf er the action to the Case: 22-167 Document: 23 Page: 1 Filed: 11/18/2022IN RE : CLOUDFLARE , INC

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Northern District of California , where Cloudflare maintain s its principal place of business . In support of its motion, Cloudflare relied on a declaration from its Director of Product, Mr. Rustam Lalkaka

, which identified only one empl oyee who worked from Cloudflare’s offices within the Western District of Texas in Austin as having relevant knowledge concerning the accused products. *
The district court, adopting the recommendation of the magistrate judge, denied Cloudflare’s motion. T he courtbegan by finding Mr. Lalkaka lacked credibility and admitted to not investigating facts relevant to Cloudflare’s Austin office. Appx4. The court then analyzed the traditional factors bearing on a § 1404(a) motion. It concluded that Cloudflar e had failed to demonstrate the Northern District of California was clearly more convenient

. Appx26. In reaching that conclusion, t he court determine d that num erous Cloudflare employees in Austin have relevant information that was not disclosed in Mr. Lalkaka’s declaration , Appx12

– 13 ; that Cloudflare employees in Austin helped research, test, and market the accused products

, Appx 13, 25 ; that physical documentary evidence is located in both forums , Appx7 ; that potential electronic e vidence is being stored outside both districts and accessible from Cloudflare’s offices in both districts

, i d .; and that

, while the compulsory process factor favored transfer

, that factor wasentitled to less weight because Cloudflare had failed to offer e vidence or an adequate explanation as to why many of the potential witnesses have relevant information , Appx11.

On mandamus review of a § 1404(a) decision , we applyregional circuit law, here the United States Court of Appeals for the Fifth Circuit, where our review is limited to determining whether the denial of transfer was such a

* While Mr. Lalkaka’s declaration stated that thisemployee was planning on moving to London, it is undisputed that the employee no longer plans on moving. Case: 22-167 Document: 23 Page: 2 Filed: 11/18/2022IN RE : CLOUDFLARE , INC

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“‘clear’ abuse of discretion” that refusing transfer would produce a “patently erroneous result

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

, (citation omitted)

. Under Fifth Circuit law, we will deny mandamus unless “the facts and circumstances are without any basis for a judgment of discretion.” In re Volkswagen of Am, Inc.

, 545 F.3d 304, 31 2 n.7 (5 th Cir. 2008) (en banc) (citation omitted)

. Cloudflare has not met that standard with its petition

. We see no clear abuse of discretion in the court’s denial of transfer. The district court explained that the Western District of Texas , a district in which Cloudflare itself stated that its employee s helped research, design, develop, implement, test, and market the accused products, had a localized interest and would be convenien t for potential sources of proof and party witnesses. The court further explained that Mr. Lalkaka, who Cloudflare relied on in identifying which of its employees are potential witnesses

, had failed to adequately investigate the responsibilities and duties of its employees in Austin, admitted that he did not look into whether there are engineers in Austin that worked on the

a ccused products, and had been unable to explain what criteria he used to determine how certain employees

, largely residing in the transferee forum, were subject matter experts, while other employees in Austin were not

. Appx13

– 14. Mindful of the standard of review, we are not preparedto disturb these findings, which plausibly support the conclusion that Cloudflare failed to show that the transferee forum was clearly more convenient

. Accordingly, Case: 22-167 Document: 23 Page: 3 Filed: 11/18/2022IN RE : CLOUDFLARE , INC

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I T I S O RDERED T HAT :
The pe tition is denied.

November 18 , 2022 Date F OR THE C OURT

/s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court Case: 22-167 Document: 23 Page: 4 Filed: 11/18/2022