US 7284833 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

NCS MULTISTAGE INC., 

Plaintiff, 

v. 

NINE ENERGY SERVICE, INC., 

Defendant. 

CIVIL ACTION NO. 6:20-CV-00277-ADA 

JURY TRIAL DEMANDED 

DEFENDANT NINE ENERGY SERVICE, INC.’S OPPOSED 

MOTION TO TRANSFER VENUE 

Case 6:20-cv-00277-ADA Document 24 Filed 07/31/20 Page 1 of 16
Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA i 

Table of Contents 

I. Preliminary Statement. .........................................................................................................1

II. Summary of Key Facts .........................................................................................................1

III. Argument .............................................................................................................................3

A. NCS Could Have Brought This Action In SDTX. ...................................................5

B. The Vast Majority of Evidence is Available in Houston, Weighing In Favor of 

Transfer. ...................................................................................................................5

C. Non-Party Witnesses Are Within the Absolute Subpoena Power of the Houston 

Division of SDTX, Weighing In Favor of Transfer. ................................................6

D. The Convenience of the Witnesses Strongly Weighs in Favor of Transfer. ............7

E. The Jurors in Houston Have A Substantial Local Interest In This Case, Weighing 

In Favor of Transfer. ................................................................................................8

F. The Remaining Factors Are Neutral. .......................................................................9

IV. Conclusion .........................................................................................................................10

 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA ii 

Table of Authorities 

Cases

Action Indus., Inc. v. U.S. Fid & Guar. Co., 

358 F.3d 337 (5th Cir. 2004) .............................................................................................. 3 

Adaptix, Inc. v. HTC Corp., 

937 F. Supp. 2d 867 (E.D. Tex. 2013) ................................................................................ 6 

ADS Sec. L.P. v. Advanced Detection Sec. Servs., Inc., 

No. A-09-CA-773-LY, 2010 WL 1170976 (W.D. Tex. Mar. 23, 2010) ............................ 7 

DataScape, Ltd. v. Dell Techs., Inc., 

No. 6:19-cv-00129-ADA, 2019 WL 4254069 (W.D. Tex. June 7, 2019) ...................... 4, 8 

DynaEnergetics Europe GMBH v. Hunting Titan, Inc., 

6:20-CV-00069-ADA, 2020 WL 3259807 (W.D. Tex. June 16, 2020) ......................... 4, 7 

Gulf Oil Corp. v. Gilbert, 

330 U.S. 501 (1947) ............................................................................................................ 8 

In re Adobe, Inc., 

No. 2020-126 (Fed. Cir. Jul. 28, 2020) ............................................................................. 10 

In re Genentech, Inc., 

566 F.3d 1338 (Fed. Cir. 2009)................................................................................. 5, 7, 10 

In re TS Tech USA Corp., 

551 F.3d 1315 (Fed. Cir. 2008)......................................................................................... 10 

In re Volkswagen AG, 

371 F.3d 201 (5th Cir. 2004) .............................................................................................. 8 

In re Volkswagen of Am., Inc., 

545 F.3d 304 (5th Cir. 2008) ..................................................................................... passim 

Mimedx Grp., Inc. v. Texas Human Biologics, Ltd., 

No. 1:14-CV-464-LY, 2014 WL 12479284 (W.D. Tex. Aug. 12, 2014) ........................... 8 

Moskowitz Family LLC v. Globus Medical, Inc., 

No. 6:19-cv-00672-ADA (W.D. Tex. Jul. 2, 2020) .................................................... 4, 5, 7 

Van Dusen v. Barrack, 

376 U.S. 612 (1964) ............................................................................................................ 3 

VLSI Tech. LLC v. Intel Corp., 

No. 6:19-CV-000254-ADA, 2019 WL 4254065 (W.D. Tex. Aug. 6, 2019) ...................... 4 

Case 6:20-cv-00277-ADA Document 24 Filed 07/31/20 Page 3 of 16
Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA iii 

Statutes

28 U.S.C. § 1400(b) ........................................................................................................................ 5 

28 U.S.C. § 1404 ............................................................................................................................. 7 

28 U.S.C. § 1404(a) ................................................................................................................ 1, 3, 5 

Rules

Fed. R. Civ. P. 45(c)(1)(A) ............................................................................................................. 6 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 1 

I. PRELIMINARY STATEMENT. 

This dispute between Houstonians should be litigated in Houston. For the convenience of 

the parties and witnesses, Nine Energy Service, Inc. (“Nine”) respectfully requests that the Court 

transfer this case to the Houston Division of the Southern District of Texas (“SDTX”) pursuant to 

28 U.S.C. § 1404(a). Both Plaintiff NCS Multistage, Inc. (“NCS”) and Nine are headquartered a 

few miles from one another in Houston. All sales in Texas of the accused product are led by a 

sales manager based in Houston; a substantial portion of those devices are manufactured in 

Houston; and the vast majority of relevant information is available in Houston. Given the location 

of the parties’ headquarters, Nine expects that nearly all party witnesses either live in Houston or 

regularly travel there. Accordingly, litigating this dispute in Houston would be significantly more 

convenient for the parties and witnesses than keeping the case in Waco. 

In contrast, the only connection this case has to the Western District of Texas (“WDTX”) 

is the location of field offices near Midland. But no substantial quantity of evidence is located 

there that is not equally available from the corporate offices in Houston. Further, even those field 

offices are not located within the Waco division, and thus provide no localized interest in favor of 

keeping the case in Waco. Plaintiff appears to have filed this case in WDTX given this division’s 

experience and procedures for patent cases. However, in doing so, it has overlooked a far more 

convenient forum for both parties. For these reasons, Nine respectfully submits that Houston is a 

substantially more convenient form, and respectfully requests that the Court transfer this dispute 

between Houstonians to Houston. 

II. SUMMARY OF KEY FACTS 

This is a patent dispute between two Houston-based companies over Nine’s BreakThruTM 

Casing Flotation Device (the “BreakThruTM Device”). Nine’s worldwide headquarters is located 

in Houston. Ex. A, at ¶ 7. Relevant witnesses and evidence related to the BreakThruTM Device 

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NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 2 

are located in Houston, SDTX, or abroad. Id. at ¶¶ 10, 15-16, 20-21. Even Nine’s employees 

outside of Houston regularly travel to the Nine offices in Houston. Id. at ¶¶ 21-22. 

A substantial portion of the BreakThruTM Devices assembled for the Texas market are 

manufactured by non-party OFS International, LLC (“OFS”), whose facilities are also located in 

Houston. Id. at ¶ 18. The remaining devices for Texas distribution are assembled at Nine’s 

facilities in Corpus Christi, which is also within SDTX. Id. BreakThruTM devices for other 

markets are assembled at Nine facilities in Marietta, Ohio and Red Deer, Alberta. Id. at ¶ 19. 

Nine’s sales manager for the BreakThruTM Device in Texas is based in Houston. Id. at ¶ 16. The 

vast majority of non-cumulative and discoverable information is accessible from the corporate 

office in Houston. Id. at ¶ 10. 

While Nine has three offices in WDTX, only the office in Midland provides any services 

related to the accused BreakThruTM Device. Id. at ¶ 11-13. However, only a few employees at the 

Midland facility work with the BreakThruTM Device, and none are senior employees with any 

specialized knowledge. Id. at ¶ 13. In fact, the majority of employees working at the Midland 

facilities are responsible for field operations related to Nine’s wireline and cementing business 

units, which are not at issue here. Id. Moreover, there is no substantial evidence in Midland that 

is not equally available in Nine’s Houston headquarters. Id. at ¶ 10-14. Indeed, nearly half of all 

Nine’s customers that use the BreakThruTM Device are based in Houston. Id. at ¶ 20. 

Plaintiff NCS is also headquartered in Houston, with a primary place of business less than 

25 miles from the federal courthouse in Houston. Complaint, Dkt. 2; Ex. C; See Ex. B. Relevant 

non-party witnesses are also located in Houston, including employees of OFS International, LLC, 

as well as the sole inventor of U.S. Patent No. 10,465,445 (the “Asserted Patent”) who resides in 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 3 

the United States. See Ex. A at ¶ 18; Ex. D.1 For the convenience of the Court, Nine has provided 

a map of relevant locations as Exhibit B. In compliance with Local Rule CV-7(i), counsel for Nine 

and NCS conferred on this motion on July 13, 2020, but could not agree to Nine’s requested 

transfer. 

III. ARGUMENT 

This dispute among Houstonians would be substantially more convenient to try in Houston. 

“[T]he convenience of parties and witnesses” and “the interest of justice” would be best served by 

litigating this dispute at the Bob Casey United States Courthouse in Houston. See 28 U.S.C. § 

1404(a). Indeed, Section 1404(a) empowers courts to “prevent plaintiffs from abusing their 

privilege [under the relevant venue statute] by subjecting defendants to venues that are 

inconvenient . . . .” In re Volkswagen of Am., Inc., 545 F.3d 304, 313 (5th Cir. 2008) (“Volkswagen 

II”). The moving party carries the burden of showing transfer is appropriate. Id. at 314. Transfers 

for convenience are intended to prevent exactly the waste of time, energy, and money that would 

occur by trying a case in a forum distant from co-located litigants. See Van Dusen v. Barrack, 376 

U.S. 612, 616 (1964). 

“The preliminary question under § 1404(a) is whether a civil action ‘might have been 

brought’ in the destination venue.” Volkswagen II, 545 F.3d at 312. If this requirement is met, 

“[t]he determination of ‘convenience’ turns on a number of public and private interest factors, 

none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid & Guar. 

1

 NCS has also filed four other cases in this district asserting the same patent: NCS v. TCO AS (the 

“TCO Case”), No. 6:20-cv-00622-ADA; NCS v. Allamon Tool Co. Inc., No. 6:20-cv-00699-ADA 

(the “Allamon Case”); NCS v. Packers Plus Energy Services (the “Packers Plus Case”) No. 6:20-

cv-00700-ADA, NCS v. Permian Petrolink, LLC (the “Petrolink Case”), No. 6:20-cv-00701-ADA 

(all W.D.Tex.) (collectively, the “NCS Cases”). No responsive filings have been made. All U.S. 

parties to the NCS Cases are headquartered within 40 miles of the Houston courthouse, except 

Permian Petrolink, LLC. See Ex. B. 

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NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 4 

Co., 358 F.3d 337, 340 (5th Cir. 2004). The eight factors in the Fifth Circuit (the Volkswagen 

factors) include four private factors: (1) the relative ease of access to sources of proof; (2) the 

availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance 

for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious 

and inexpensive. Volkswagen II, 545 F.3d at 315. The Fifth Circuit also looks to four public 

factors, which include (5) the administrative difficulties flowing from court congestion; (6) the 

local interest in having localized interests decided at home; (7) the familiarity of the forum with 

the law that will govern the case; and (8) the avoidance of unnecessary problems of conflict of 

laws of the application of foreign law. Id. 

“A plaintiff’s choice of venue is not an independent factor in the venue transfer analysis, 

and courts must not give inordinate weight to a plaintiff’s choice of venue.” VLSI Tech. LLC v. 

Intel Corp., No. 6:19-CV-000254-ADA, 2019 WL 4254065, at *12 (W.D. Tex. Aug. 6, 2019) 

(Albright, J.) (citing Volkswagen II, 545 F.3d at 314 n.10, 315). Ultimately, where an action could 

have been brought in the transferee venue and the transferee venue is “clearly more convenient,” 

a motion to transfer should be granted. DataScape, Ltd. v. Dell Techs., Inc., No. 6:19-cv-00129-

ADA, 2019 WL 4254069, at *2 (W.D. Tex. June 7, 2019) (Albright, J.). Where, as here, the 

litigants are located near each other, yet remote from the forum, this court has not hesitated to 

transfer the case to a more convenient, and logical, venue. See Moskowitz Family LLC v. Globus 

Medical, Inc., No. 6:19-cv-00672-ADA, slip op. at 13 (W.D. Tex. Jul. 2, 2020) (Albright, J.); 

DynaEnergetics Europe GMBH v. Hunting Titan, Inc., 6:20-CV-00069-ADA, 2020 WL 3259807, 

at *10 (W.D. Tex. June 16, 2020) (Albright, J.). 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 5 

Here, all of the Volkswagen factors weigh in favor of transfer or are neutral. Not one 

weighs in favor of keeping this case in Waco. It is therefore clear that this case between 

Houstonians should be transferred to the Houston Division of SDTX. 

A. NCS Could Have Brought This Action In SDTX. 

As a preliminary matter, this case could have been brought in the Houston Division of 

SDTX. Volkswagen II, 545 F.3d at 315 (quoting 28 U.S.C. § 1404(a)). Nine has a regular and 

established place of business (its corporate headquarters), and the acts that NCS has accused of 

infringement (making, using, and selling the BreakThruTM Device) have occurred at Nine’s 

corporate headquarters in Houston. See Ex. A, at ¶¶ 7, 20. Accordingly, this action could have 

been brought in SDTX. See 28 U.S.C. § 1400(b). 

B. The Vast Majority of Evidence is Available in Houston, Weighing In Favor 

of Transfer. 

Because nearly all evidence is accessible from Houston, factor 1 strongly weighs in favor 

of transfer. Under this factor, the court looks to where evidence and documents are stored. 

Volkswagen II, 545 F.3d at 316. Even in the digital age, the location of documentary evidence is 

relevant. Moskowitz, slip op. at 4 (citing Volkswagen II, 545 F.3d at 316). Given that the vast 

majority of relevant evidence is available in Houston, this factor heavily favors transfer. 

Nine, as the accused infringer, likely possesses the bulk of relevant documents for this case. 

See, e.g., In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009). Those documents reside or 

are accessible from Nine’s headquarters in Houston, which lies less than five miles from the federal 

courthouse in Houston. Ex. A, at ¶ 10; Ex. B. In contrast, Nine’s headquarters is more than 160 

miles from Waco. Ex. B. To the extent that relevant documents also exist in NCS’s control, Nine 

expects that those documents also reside in NCS’s Houston headquarters, within 25 miles of the 

Houston courthouse, but more than 140 miles from Waco. Id.

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 6 

Further, the mere presence of Nine’s field offices in WDTX should not overcome the 

overwhelming convenience of transferring this case to the parties’ home town. Indeed, the Nine 

facilities in Monahans and Pleasanton do not provide any services related to the BreakThruTM 

Device. Ex. A, at ¶ 12. Although the Midland office does facilitate sales and support of the 

BreakThruTM Device, Nine does not expect that any substantial amount of non-duplicative and 

non-cumulative discoverable information will be located there. Ex. A, at ¶ 14. Further, any 

evidence in Midland should not affect the convenience analysis, as the distance from the Midland 

office to the Waco courthouse is over 250 miles. See Ex. B. 

C. Non-Party Witnesses Are Within the Absolute Subpoena Power of the 

Houston Division of SDTX, Weighing In Favor of Transfer. 

Of the currently identified potential non-party witnesses, all are solely within the absolute 

subpoena power of the Houston Division of SDTX, and therefore factor 2 weighs in favor of 

transfer. “Transfer is favored when a transferee district has absolute subpoena power over a greater 

number of non-party witnesses.” Adaptix, Inc. v. HTC Corp., 937 F. Supp. 2d 867, 874 (E.D. Tex. 

2013) (emphasis added). The Fifth Circuit has held that a court does not enjoy absolute subpoena 

power unless it possesses subpoena power for both depositions and trial. Volkswagen II, 545 F.3d 

at 316. This power only exists over individuals who reside, are employed, or regularly transact 

business in person within 100 miles of the court. Fed. R. Civ. P. 45(c)(1)(A). 

Here, there are two potential non-party witnesses. First, the sole inventor of the asserted 

patent residing in the United States is Travis Harris. See Ex. D. Mr. Harris resides in Houston, 

but is not an employee of NCS. Id. Given his residence, he is not subject to the absolute subpoena 

power of WDTX. See Ex. B. He is, however, subject to the absolute subpoena power of the 

Houston division of SDTX. 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 7 

Second, to the extent NCS seeks information about the manufacture of the BreakThruTM 

Device, that information could be sought through non-party OFS International, LLC (“OFS”), 

whose primary facility is located northeast of Houston, about sixteen miles from the federal 

courthouse. See Ex. B. Employees of OFS are also subject to the absolute subpoena power of the 

Houston Division of SDTX, but not to WDTX. See Id.

D. The Convenience of the Witnesses Strongly Weighs in Favor of Transfer. 

The third and “single most important factor” is the convenience of witnesses. 

DynaEnergetics, 2020 WL 3259807, at *7 (citing In re Genentech, 566 F.3d at 1343). The Fifth 

Circuit has established a “100-mile” rule, asserting that “when the distance between an existing 

venue for trial of a matter and a proposed venue under § 1404 is more than 100 miles, the factor 

of inconvenience to witnesses increases in direct relationship to the additional distance to be 

traveled.” Id. “The Court considers the cost of attendance for party and non-party witnesses but 

gives the cost of attendance of non-party witnesses considerably more weight.” Moskowitz, slip. 

op. at 6 (citing ADS Sec. L.P. v. Advanced Detection Sec. Servs., Inc., No. A-09-CA-773-LY, 2010 

WL 1170976, at *4 (W.D. Tex. Mar. 23, 2010) (Andrew, J.)). 

Both NCS and Nine are headquartered in Houston, and most of the relevant witnesses from 

both parties work and reside in Houston, which lies about 160 miles from Waco. See Ex. B. 

Indeed, a 100-mile radius from Waco extends only to Navasota, TX, placing the entirety of the 

Houston metropolitan area beyond the 100-mile presumptive convenient distance to travel.2

 Id. 

Witnesses travelling internationally can take advantage of direct flights to Houston. See Ex. G. 

No such direct flights exist to Waco. See Ex C; Ex. F. Further, Nine’s senior employees living 

2

 All litigants in the other cases filed by NCS are likewise headquartered in the Houston area or 

internationally, so the same analysis applies to them. The one exception is Permian Petrolink, 

LLC, whose headquarters is located a presumptively inconvenient 290 miles from Waco. 

Case 6:20-cv-00277-ADA Document 24 Filed 07/31/20 Page 11 of 16
Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 8 

outside of the Houston area regularly travel to Houston on business. Ex. A, at ¶¶ 21-22. 

Presumptively, the same is true for NCS. 

Non-parties Mr. Harris or corporate witnesses from OFS would also have to travel nearly 

400 miles and spend over six hours roundtrip driving to Waco to attend trial. See Ex. B. This 

substantial cost, time, and inconvenience to non-party witnesses is unnecessary and is remedied 

by transferring the case to Houston. 

E. The Jurors in Houston Have A Substantial Local Interest In This Case, 

Weighing In Favor of Transfer. 

 The Houstonians of SDTX have a substantially greater interest in having this case tried 

locally than the Wacoans of WDTX. Accordingly, factor 6 weighs heavily in favor of transfer. 

This factor weighs the relative interests between the transferee and transferor forums. Datascape, 

2019 WL 4254069, at *8. The Fifth Circuit has reasoned that this factor is tied to the burdens of 

jury service, and that the burdens of serving on a jury “‘ought not to be imposed upon the people 

of a community which has no relation to the litigation.’” In re Volkswagen AG, 371 F.3d 201, 206 

(5th Cir. 2004) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)). Both WDTX 

and SDTX assemble venire panels from individuals residing in the counties that compose a 

division. See Final Order Re: Jurors in WDTX at 1-2 (W.D. Tex. Mar. 21, 2017) (C.J. Garcia); In 

re Amended Jury Plan, Order 2013-06, at § 5 (S.D. Tex. Jul. 5, 2013). Accordingly, when 

comparing venues between SDTX and WDTX, the relevant “community” under the Volkswagen 

factors is the division, not the wider district as a whole. See, e.g., Mimedx Grp., Inc. v. Texas 

Human Biologics, Ltd., No. 1:14-CV-464-LY, 2014 WL 12479284, at *7 (W.D. Tex. Aug. 12, 

2014) (“The ultimate outcome of this suit likely affects local San Antonio interests more acutely 

than local Austin interests.”). 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 9 

 Here, the Houston Division has a clear and unmistakable interest in this case: (1) both Nine 

and NCS are headquartered in Houston (Ex. A, at ¶ 7; Complaint, Dkt. 2), (2) many of the alleged 

infringing acts occurred in Houston, including the assembly of BreakThruTM Devices (Ex. A, at ¶¶ 

18, 20), (3) both Nine and NCS employ a significant number of employees in Houston (Id. at ¶ 8), 

(4) one of the named inventors of the Asserted Patent lives in Houston (Ex. D), (5) employees of 

non-parties OFS and 47% of Nine’s customers in Houston demonstrate that clear interest (Id. at 

¶ 20).3

 

 In comparison, the Waco division of WDTX has no interest in this case at all. Neither Nine 

nor NCS has any employees or operations there. Complaint, Dkt. 2; Ex. C. Nine maintains no 

facilities in the Waco division.4 Ex. A, at ¶ 23. Indeed, the only links that this case has to the wider 

WDTX are Nine’s offices in Midland, Monahans, and Pleasanton. Complaint, Dkt. 2. But the 

Monahans and Pleasanton facilities do not provide any services related to the BreakThruTM 

Devices. Ex. A, at ¶ 12. And while the BreakThruTM Device is sold and serviced by the Midland 

location, that location is over 280 miles from Waco, and is situated in the Midland division of 

WDTX. Id. at ¶ 11; Ex. B. As a result, a juror from the Midland division cannot be empaneled to 

hear this case. 

F. The Remaining Factors Are Neutral. 

The remaining Volkswagen factors 4, 5, 7, and 8 are generally neutral and do not weigh in 

favor of or against transfer. Factor 4 is neutral because this case remains in its early stages. There 

is therefore no private efficiency advantage to be gained by trying this case in one district over 

another. No scheduling order has yet been entered. Further, no responsive pleading or motion has 

3

 The same analysis applies to the litigants in the NCS Cases, except Permian Petrolink, LLC. 

4

 NCS has not alleged that any of the litigants in the NCS Cases operate in the Waco division. 

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NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 10 

yet been filed in the NCS Cases, leaving no clear efficiency gains could be achieved by 

consolidation.5

 Therefore, transferring this case would not result in any inefficiency. 

Factor 5 weighs slightly in favor of transfer. The courts in SDTX provide a slightly faster 

time to resolution, averaging 23.2 months as compared to 24.6 months in WDTX. See Ex. I. 

However, court congestion is “the most speculative” factor, and where “relevant factors weigh in 

favor of transfer and others are neutral, then the speed of the transferee district court should not 

alone outweigh all those other factors.” In re Genentech, 566 F.3d at 1347 (applying Fifth Circuit 

law). Further, while this Court has a speedy default scheduling order, the Federal Circuit has 

cautioned against considering such general practices. In re Adobe, Inc., No. 2020-126, slip op. at 

7-8 (Fed. Cir. Jul. 28, 2020). 

Factor 7 is also neutral because the claims in this case arise under federal patent law. Both 

districts are familiar with and equally capable of applying federal patent laws to patent 

infringement and invalidity claims. In re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 

2008) (applying Fifth Circuit Law). Factor 8 is also neutral, since this case does not involve any 

conflict of laws or application of foreign law. 

IV. CONCLUSION 

Weighing the factors together, private factors 1-3 and public factor 6 strongly weigh in 

favor of transfer and none weigh in favor of WDTX, with the remaining factors neutral. 

Accordingly, transfer to the Houston Division of SDTX would be significantly more convenient 

than trying this case in Waco. For these reasons, Defendant respectfully requests that the Court 

grant this motion and transfer this case to the Houston Division of the Southern District of Texas. 

5

 The only defendant in the NCS cases with a principal place of business in WDTX is Petrolink, 

LLC, whose headquarters is located nearly 290 miles from Waco. Accordingly, it is likely that 

many, if not all, of the defendants will respond with motions to dismiss or transfer. 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

No. 6:20-cv-00277-ADA 11 

Dated: July 31, 2020 Respectfully submitted, 

VINSON & ELKINS LLP 

By: /s/ Hilary L. Preston 

Hilary L. Preston 

Texas Bar No. 24062946 

hpreston@velaw.com 

VINSON & ELKINS LLP 

2801 Via Fortuna, Suite 100 

Austin, TX 78746 

Telephone: +1.512.542.8400 

Fax: +1.512.542.8612 

Parker D. Hancock 

Texas Bar No. 24108256 

phancock@velaw.com 

Sean P. Belding 

Texas Bar No. 24109634 

sbelding@velaw.com 

VINSON & ELKINS LLP 

1001 Fannin Street, Suite 2500 

Houston, TX 77002-6760 

Telephone: +1.713.758.2222 

Fax: +1.713.758.2346 

 

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Defendant Nine Energy Service, Inc.’s Opposed Motion to Transfer Venue 

NCS Multistage, Inc. v. Nine Energy Service, Inc. 

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CERTIFICATE OF SERVICE 

I hereby certify that on the 31st day of July, 2020, a true and correct copy of the foregoing 

document was served on all counsel of record via the Court’s CM/ECF system per Local Rule CV5(b)(1). 

/s/ Hilary L. Preston 

Hilary L. Preston 

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