IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

SITO MOBILE R&D IP, SITO 

MOBILE, LTD.,

 Plaintiffs,

v.

HULU, LLC,

 Defendant.

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6-20-CV-00472-ADA

ORDER DENYING DEFENDANT’S MOTION TO TRANSFER

Before the Court is Defendant Hulu, LLC’s Opposed Motion to Transfer (ECF No. 29), 

Plaintiffs SITO Mobile R&D IP, LLC and SITO Mobile, Ltd.’s (collectively, SITO) Response 

(ECF No. 40), and Defendant’s Reply (ECF No. 44). After having reviewed the parties’ briefs, 

case file, and applicable law, the Court has determined that Defendant Hulu’s Motion to Transfer 

should be DENIED.

I. BACKGROUND

SITO filed this action on June 2, 2020 pursuant to the Court’s original jurisdiction under 

28 U.S.C. §§ 1331 and 1338(a). ECF No. 1. Plaintiffs allege patent infringement claims against 

Hulu relating to seven U.S. Patents, Nos. 8,825,887; 9,026,673; 9,135,635; 9,135,636; 

9,591,360; 10,009,637 and 10,171,846. Id. at 1. Hulu expressly denies any infringement of these 

patents. ECF No. 12, 9–17. 

On October 5, 2020, Hulu filed an opposed Motion to Transfer under 28 U.S.C. 

§ 1404(a). Hulu’s Mot. to Transfer to the Central District of California (hereinafter “Mot. to 

Transfer”), ECF No. 29. In Hulu’s Motion to Transfer, Hulu argues transfer to the Central

District of California is proper because: (1) SITO could have originally filed suit in the proposed 

transferee venue and (2) the convenience of the parties and interests of justice weigh in favor of 

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transfer. Id. at 6–10. On December 7, 2020, SITO filed a response to Hulu’s Motion. Pls. SITO 

Mobile R&D IP, LLC and SITO Mobile, Ltd.’s Br. in Opp’n to Def. Hulu, LLC’s Mot. to

Transfer (hereinafter “Resp.”), ECF No. 40. On December 14, 2020, Hulu filed a reply. Hulu

LLC’s Reply in Supp. of its

Mot. to Transfer to the Central District of California (hereinafter “Reply”), ECF No. 44. 

II. LEGAL STANDARD

“For the convenience of parties and witnesses, in the interest of justice, a district court 

may transfer any civil action to any other district or division where it might have been brought . . 

.” 28 U.S.C. § 1404(a). Courts maintain discretion to adjudicate motions to transfer venue on an 

individualized, case-by-case basis that considers convenience and fairness. Stewart Org., Inc. v. 

Ricoh Corp. 487 U.S. 22, 29 (1988).

The movant in a motion to transfer bears the burden of establishing good cause for the 

proposed transfer. Humble Oil & Refining Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th 

Cir. 1963); see also In re Volkswagen of Am., 545 F.3d 304, 315 (5th Cir. 2008) (“Volkswagen 

II”). Good cause, when viewed in the context of § 1404(a), means the movant must clearly 

demonstrate that a transfer is for the convenience of parties and witness, as well as in the interest 

of justice, in order for the movant to support its claim for a transfer. Volkswagen II, 545 F.3d at 

315. Quite simply, when the movant demonstrates the transferee venue is clearly more 

convenient by weighing certain private and public interest factors, good cause exists, and the 

district court should grant the motion. Id. However, if the movant fails to show the proposed 

venue is clearly more convenient than the plaintiff’s chosen venue, the plaintiff’s choice should 

prevail. Id.

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Courts have adopted the private and public interest factors first enunciated in Gulf Oil 

Corp. v. Gilbert, 330 U.S. 501 (1947) to determine whether a § 1404 venue transfer is clearly 

more convenient and in the interest of justice. Volkswagen II, 545 F.3d at 315. The relevant 

private interest factors include: “(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.” Id. (internal quotes omitted). The relevant public interest 

factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local 

interest in having localized interests decided at home; (3) the familiarity of the forum with the 

law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws 

or in the application of foreign law. Id. (internal quotes omitted). These factors are not 

necessarily exhaustive nor exclusive. Id. Moreover, a court cannot say any of the factors alone 

have dispositive weight. Id. 

Importantly, one listed factor from Gulf Oil carries far less weight in a § 1404 transfer. 

Gulf Oil stated an interest to consider (and the one most likely pressed) was the private interest 

of the plaintiff regarding its choice of forum. See Gulf Oil, 330 U.S. at 508. However, Gulf Oil is 

distinguishable in this regard because it was a fourm non conveniens case, which inherently 

implicates potential dismissal of the plaintiff’s case. See generally id. Because transfer through 

§ 1404(a) avoids dismissal (unlike forum non conveniens), the choice of forum factor set out in 

Gulf Oil receives far less weight from courts in the venue transfer analysis. Humble Oil, 321 F.2d 

at 56. The difference is such because the “good cause” burden inherently takes into account “the 

appropriate deference to which the plaintiff’s choice of venue is entitled.” Volkswagen II, 545 

F.3d at 315. Ultimately, "when the transferee venue is not clearly more convenient than the 

Case 6:20-cv-00472-ADA Document 66 Filed 03/24/21 Page 3 of 17
venue chosen by the plaintiff, the plaintiff’s choice should be respected." Id. at 315; see also QR 

Spex, Inc. v. Motorola, Inc., 507 F. Supp. 2d 650, 664 (E.D. Tex. 2007) (characterizing movant's 

burden under§ 1404(a) as "heavy").

III. ANALYSIS

The Court now turns to examine Defendant Hulu’s § 1404(a) arguments. Hulu argues the 

Central District of California is both a proper and more convenient venue for this action. Mot. to 

Transfer at 5–10. Hulu must show that the balance between the private interests and public 

interests described by the Supreme Court in Gulf Oil clearly establishes the Central District of

California as a more convenient venue than the present one.1See Volkswagen II, 545 F.3d at 315. 

In order to determine whether Hulu has demonstrated good cause, the Court must weigh 

the private and public interest factors catalogued in Gulf Oil. The private interest factors include:

relative ease of access to sources of proof; availability of compulsory process for 

attendance of unwilling, and the cost of obtaining attendance of willing, 

witnesses; possibility of view of premises, if view would be appropriate to the 

action; and all other practical problems that make a trial of a case easy, 

expeditious and inexpensive.

Gulf Oil, 330 U.S. at 508. The public interest factors include:

the administrative difficulties flowing from court congestion; the “local interest in 

having localized controversies decided at home”; the interest in having the trial of 

a diversity case in a forum that is at home with the law that must govern the 

action; the avoidance of unnecessary problems in conflict of laws, or in 

application of foreign laws; and the unfairness of burdening citizens in an 

unrelated forum with jury duty.

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981). If, when added together, the relevant 

private and public interest factors are in equilibrium, or even if they do not clearly lean in favor 

1The Court notes the threshold issue in a § 1404 motion to transfer is whether the plaintiff could have filed its claim 

in the judicial district to which transfer is sought. Volkswagen I, 371 F.3d at 203. Because neither party argues Hulu 

cannot satisfy this issue, the Court will simply state the threshold issue has been satisfied.

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of the transferee venue, the motion must be denied. Volkswagen II, 545 F.3d at 315. Once again, 

the Court’s ultimate inquiry is which forum will best serve the convenience of the parties and the 

interests of justice. Koster v. Am. Lumbermens Mutual Casualty Co., 330 U.S. 518, 527 (1947). 

In this case, the relevant factors do not support Hulu’s motion to transfer this case.

A. The Private Interest Factors Do Not Clearly Establish the Central District of 

California is a More Convenient Venue

A plaintiff may not choose an inconvenient forum in order to vex, harass, or oppress a 

defendant by inflicting upon the defendant expense or trouble not necessary to the plaintiff’s own 

right to pursue a remedy. Gulf Oil, 330 U.S. at 508. In considering private factors, the Court 

necessarily engages in a comparison between the hardships the defendant would suffer through 

the retention of jurisdiction and the hardships the plaintiff would suffer from transferring the 

action to the transferee venue. Cf. Iragorri v. United Technologies Corp., 274 F.3d 65, 74 (2d 

Cir. 2001) (stating courts engage in such a comparison for forum non conveniens analyses). The 

Court will assess each of these factors in turn.

1. The Relative Ease of Access to Sources of Proof

A court looks to where documentary evidence, such as documents and physical evidence, 

is stored when considering the first private interest factor. Volkswagen II, 545 F.3d at 316. “To 

properly consider this factor, parties must “describe with specificity the evidence they would not 

be able to obtain if trial were held in the [alternate forum].” Piper Aircraft Co., 454 U.S. at 258.

Hulu claims the ease of access to sources of proof compared across venues weighs 

heavily in favor of transfer, stating that its documents and most third-party evidence is located in 

the Central District of California. Mot. to Transfer at 3–4. Specifically, Hulu argues that its 

technical documents and source code relating to the accused technology are in Santa Monica, 

California. Id. at 7. Hulu states that financial documents related to accused revenue sharing 

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agreements are located in the proposed transferee district. Id. Additionally, Hulu also argues that 

third party prior art evidence is located in or near the Central District of California. Id. at 8. Hulu

further alleges that SITO has no identifiable evidence in this District. Id. 

SITO responds to Hulu’s contentions by advancing two arguments. First, SITO argues 

this factor weighs against transfer because Hulu could access sources of proof just as easily in 

this District as in the proposed transferee district and that certain sources of proof are not even 

accessible in the proposed transferee district. Resp. at 15–16. SITO also argues that Hulu's 

contentions that third-party sources of proof exist within the Central District of California are 

speculative at best, either because the assertions are unsupported or because the third parties are 

within this Court’s subpoena power. Id. at 16. Additionally, SITO challenges Hulu’s assertions 

that no sources of proof exist within this District by claiming the documents for some of SITO’s 

third-party witnesses are located in or around this District. Id. at 16–17.

In its reply, Hulu advances a number of counterarguments. First, Hulu argues that SITO’s 

references to Hulu’s Texas-based operations incorrectly conflates the accused products’

relevance to the current venue with separate Hulu operations that are not related to the relevant 

sources of proof. Reply at 4. Rather, Hulu maintains that no Texas-based locations can access 

relevant source code or technical documents, and all such sources of proof are created, 

maintained, and accessed by its engineers in the Central District of California. Id. Hulu also 

argues that the alleged sources of proof in or around this District identified by SITO are not 

particularized or unique to this District. Id. at 5–6. Finally, Hulu emphasizes it has identified 

third-party sources of proof, which is located in or near the Central District of California. Id. at 

4–5. 

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The Court determines the ease of access to sources of proof factor weighs only slightly in 

Hulu’s favor. Despite SITO’s contention that sources of proof exist in or around this 

District, Hulu will likely have the bulk of the documents that are relevant in this case because it 

is the accused infringer. See, e.g., In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009) 

(“In patent infringement cases, the bulk of the relevant evidence usually comes from the accused 

infringer. Consequently, the place where the defendant's documents are kept weighs in favor of 

transfer to that location.”). However, the Court also notes both parties have devoted a great deal 

of briefing on where the sources of proof are located. While the physical location of sources of 

proof affects the weight of this factor, the parties also must describe with specificity the evidence 

they could not obtain in the alternate forum. Piper Aircraft Co., 454 U.S. at 258. The Court finds 

neither party has made significant showings in this regard. Self-serving statements about a 

witness’s willingness to travel to one forum but not the other or speculative references to the 

location of potentially relevant third-party evidence do not show whether that source of proof is 

unobtainable in the alternative forum. Therefore, the Court finds that the location of the sources 

of proof relevant in this case weighs only slightly in favor of transfer because Hulu is the alleged 

infringer.

2

2Although the Court wishes to make clear that it has followed Fifth Circuit precedent regarding this factor, the Court 

believes that the factor itself is at odds with the realities of modern patent litigation. In patent disputes like the one 

now before the Court, relevant documents are typically located on a server, which may or may not be in the 

transferee district (or given the use of cloud-based storage, may be located on multiple servers in multiple districts, 

or even multiple countries) and are equally accessible from both the transferee and transferor districts. Therefore, in 

this Court's view, there is no difference in the relative ease of access to sources of proof from the transferor district 

as compared to the transferee district when the vast bulk of documents are electronic. District courts — particularly 

those with patent-heavy dockets that have very significant document productions — have recently begun to 

acknowledge this reality. Uniloc USA Inc. v. Samsung Elecs. Am., No. 2:16-cv-00642-JRG, ECF No. 216 at 8-9 

(E.D. Tex. Apr. 19, 2017) ("Despite the absence of newer cases acknowledging that in today's digital world 

computer stored documents are readily moveable to almost anywhere at the click of a mouse, the Court finds it odd 

to ignore this reality in favor of a fictional analysis that has more to do with early Xerox machines than modem 

server forms."). However, under current Fifth Circuit precedent, the physical location of electronic documents 

affects this factor’s outcome. See, e.g., Volkswagen II, 545 F.3d at 316. Even though it would not have changed the 

outcome of this motion, this Court expresses its hope that the Fifth Circuit will consider addressing and amending its 

precedent to explicitly give district courts the discretion to fully consider the ease of accessing electronic documents.

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2. The Availability of Compulsory Process to Secure the Attendance of Witnesses

When balancing this factor, the Court considers the availability of compulsory process to 

secure the attendance of witnesses whose attendance may require a court order. Volkswagen II, 

545 F.3d at 316.

In its initial brief, Hulu asserts this factor weighs in favor of transfer because “most of the 

relevant third-party witnesses are in [the Central District of California] and California.” Mot. to 

Transfer at 9. SITO responds to Hulu’s arguments by stating the factor weighs against transfer. 

Resp. at 17. SITO argues multiple third parties that Hulu identified are actually outside of the 

subpoena power of the Central District of California. Id. SITO also argues that the factor weighs 

against transfer because Hulu has not identified specific witnesses for whom compulsory process

would be required in order to secure their testimony. Id. at 17–18. In response, Hulu simply 

points out that compulsory process would exist over all witnesses in California under the 

language of 45(c)(1)(B) of the Federal Rules of Civil Procedure. Reply at 9.

After considering the parties’ arguments, the Court finds that this factor weighs against 

transfer. First, Hulu has not shown transfer is clearly more convenient for all of its non-party 

witnesses. As this Court has previously held, to the extent that Hulu intends to use these 

witnesses as third-party art witnesses as it indicates in its Motion, the Court notes that prior art 

witnesses are generally unlikely to testify at trial, and the weight afforded their presence in this 

transfer analysis is minimal. CloudofChange, LLC v. NCR Corp., No. 6:19-cv-00513, 2020 WL 

6439178, at *4 (W.D. Tex. Mar. 17, 2020); Fintiv, Inc., 2019 WL 4743678, at *5; East Tex. Boot 

Co., LLC v. Nike, Inc., No. 2:16-cv-0290-JRG-RSP, 2017 WL 28559065 at *4 (E.D. Tex. Feb. 

15, 2017). Further, this Court has previously held that, contrary to Hulu’s contention, certain 

third-party witnesses, such as Apple, with locations within this District do fall within the Court’s 

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subpoena power. Parkervision, Inc. v. Intel Corp., No. 6:20-cv-00108, 2021 WL ________, at *7 

(W.D. Tex. Jan. 26, 2021). 

Second, and perhaps more to the point, Hulu has not shown any potential witness is 

unwilling to testify, other than Mr. Newton, the Level 3 engineer. Mot. to Transfer at 8. When no 

party has alleged or shown any witness’s unwillingness, a court should not attach much weight to 

the compulsory process factor. Duha v. Agrium, Inc., 448 F.3d 867, 877 (6th Cir. 2006); 

CloudofChange, LLC, 2020 WL 6439178, at *4. Here, Hulu has only shown one witness who 

expressed an unwillingness to travel to this District for trial. However, Hulu has identified Mr. 

Newton as a prior art witness. Mot. to Transfer at 8. As previously noted, prior art witnesses are 

generally unlikely to testify at trial, so the weight attributed to Mr. Newton’s unwillingness in 

this transfer analysis is minimal. See, e.g., CloudofChange, LLC, 2020 WL 6439178, at *4.

Consequently, the Court finds this factor weighs against transfer. 

3. The Cost of Attendance for Willing Witnesses

The convenience of witnesses is the most important factor in a § 1404(a) analysis.

Genentech, Inc., 566 F.3d at 1342. While a court should not consider the significance of 

identified witnesses’ testimonies, it should consider whether the witnesses may provide 

materially relevant evidence. Id. at 1343.

To assist in analyzing this factor, the Fifth Circuit adopted a “100-mile rule.” In re 

Volkswagen AG, 371 F.3d 201, 204–205 (5th Cir. 2004) (“Volkswagen I”); see also Volkswagen

II, 545 F.3d at 317. “When the distance between an existing venue for trial of a matter and a 

proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses 

increases in direct relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d 

at 204–05. Consequently, the threshold question is whether the movant’s proposed venue and a 

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plaintiff’s chosen venue are more than 100 miles apart. See Volkswagen II, 545 F.3d at 317. If 

the distance is greater, then a court will consider the distances between the witnesses and the two 

proposed venues. See id. Importantly, the venue need not be convenient for all witnesses. 

Genentech, Inc., 566 F.3d at 1345. If a substantial number of witnesses reside in one venue and 

no witnesses reside in another, the factor will weigh in favor of the venue where witnesses 

reside. See id.

As previously stated by this Court, “given typical time limits at trial, the Court does not 

assume that all of the party and third-party witnesses listed in 1404(a) briefing will testify at 

trial.” Fintiv, Inc., 2019 WL 4743678, at *6. Indeed, the Court assumes only a few party 

witnesses and even fewer non-party witnesses (if any) will testify at trial. Id. Consequently, long 

lists of potential party and non-party witnesses do not affect the Court's analysis for this factor.

Id.

Hulu argues that this factor weighs in favor of transfer because its party witnesses and 

third-party witnesses are closer to the Central District of California than this District. Mot. to 

Transfer at 4–5, 9–10. In response, SITO points out that Hulu has not carried its burden to show 

the proposed transferee district is clearly more convenient because Hulu has not identified party 

or non-party witnesses it intends to call at trial. Resp. at 18–19, 21. Additionally, SITO also 

identifies one party witness and three non-party witnesses who would be called at trial and 

explains why this factor weighs against transfer on the basis of these individuals. Id. at 19–20. 

Hulu replies by stating it intends to call key witnesses like Mr. Brookins, Hulu’s V.P. of 

Software Development, and other Hulu engineers from the Central District of California. Reply 

at 6–7. Hulu also argues that SITO incorrectly relies on Hulu’s San Antonio employees to justify 

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this Court retaining the case. Id. at 7. Finally, Hulu again states that many third-party witnesses 

reside in or close to the proposed transferee district. Id. at 8. 

The Court finds that this factor weighs against transfer for the following reasons: First, 

the convenience of party witnesses is typically given little weight because the witnesses’ 

employer could compel their testimony at trial. Turner v. Cincinnati Ins. Co., 6:19-cv-642-ADAJCM, 2020 WL 210809, at *4 (W.D. Tex. Jan. 14, 2020); Freehold Licensing, Inc. v. Aequitatem 

Capital Partners, LLC, A-18-cv-413 LY, 2018 WL 5539929, at *7 (W.D. Tex. Oct. 29, 2018). 

Some courts have considered how far these witnesses would need to travel if few or no witnesses 

reside within the current district. See, e.g., Genentech, Inc., 566 F.3d at 1345 (determining the 

convenience factor favored transfer, and not only slightly, in part because the defendants’ 

employees and managers would not have to travel as far and the foreign plaintiff had no 

connection to the current venue); contra Fintiv, Inc., 2019 WL 4743678, at *6 (stating the cost of 

attendance for party witnesses did not weigh for or against transfer because there were several 

potential witnesses in both potential venues). Contrary to Hulu’s assertion, SITO does not rely on 

Hulu’s San Antonio employees to argue against transfer. Rather, SITO points out that Mr. 

Brookins and the other unidentified Hulu employees in or near the proposed transferee district 

are still party witnesses and employees of Hulu. As noted above, courts give the convenience 

of party witnesses little weight.

Additionally, the Court agrees with SITO that Hulu’s failure to identify specific thirdparty witnesses results in this factor weighing against transfer because courts give more weight 

to specifically identified witnesses and less weight to vague assertions that witnesses are located 

in a particular forum. U.S. Ethernet Innovations, LLC v. Samsung Elecs. Co., No. 6:12-cv-398 

MHS-JDL, 2013 WL 1363613, at *3 (E.D. Tex. Apr. 2, 2013). Without such specific 

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information, the Court cannot assess the convenience of each venue for unidentified, unknown 

witnesses. Hulu attempts to circumvent this issue by arguing, for example, that one of SITO’s 

identified witnesses lives in California, thus making the Central District of California “the more 

convenient location under § 1404(a) as a matter of Fifth Circuit law.” Reply at 9. Hulu’s 

argument, however, would functionally shift the burden it carries to SITO. A non-movant 

witness living closer to the proposed transferee district does not ipso facto make that district 

more convenient as a matter of law even under the broadest reading of relevant Fifth Circuit 

precedent because a court must consider the factor of inconvenience to all witnesses. Genentech, 

Inc., 566 F.3d at 1342. Hulu must show the proposed transferee district is clearly more 

convenient, but the Court does not find that its ipse dixit argument that multiple unidentified, 

unknown witnesses would find the proposed transferee venue far more convenient carries the 

day. Accordingly, the Court finds this factor weighs against transfer.

4. Other Factors That Make Trial Easy, Expeditious, and Inexpensive

In considering a transfer motion, the court considers “all other practical problems that 

make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d at 315. Hulu 

asserts that this factor weighs in favor of transfer because the case is still in early stages and 

transfer would not cause delays. Mot. to Transfer at 10. Additionally, Hulu states this factor 

favors transfer because the Central District of California’s courts are familiar with Hulu’s 

streaming technology. Id. 

SITO responds that transferring the case would actually be less expeditious because Hulu 

has filed five IPRs against the asserted patents and the likelihood of a stay being granted is 

54.3% in the Central District of California compared to 0% in this Court. Resp. at 22 n.3. SITO 

also notes that no guidance exists on when jury trials are likely to resume in the proposed 

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transferee district. Id. at 22. SITO further argues that this factor weighs against transfer because 

it has two other cases pending in this District on the same asserted patents. Id. Hulu counters by 

arguing the other pending lawsuits do not weigh against transfer because SITO has effectively 

self-stayed one case and filed the other after Hulu and SITO conferred on this Motion. Reply at 

10. 

The Court finds this factor neutral. Even if transfer may not cause delay as Hulu argues, 

the Court notes such a finding would not weigh for or against transfer. The fact that a transfer 

would not cause delay does not mean it rises to the level of a practical problem that clearly 

shows the proposed transferee venue is more convenient. It simply means transfer would be 

feasible. The same holds true for Hulu’s argument that the Central District of California has 

familiarity with the streaming technology. This fact does not clearly show that the proposed 

venue is more convenient. Likewise, the Court finds that the possibility of the proposed 

transferee venue granting a stay a neutral factor given the argument rests purely on supposition 

of what might occur. 

While judicial economy may be served by having the Court try cases that involve the 

same patents, cases involving the same patents but different defendants, products, and witnesses 

will not necessarily be expedited by being in the same court. See Hammond Dev. Int’l, Inc. v. 

Google LLC, 1:20-cv-00342-ADA, 2020 WL 3452987 (W.D. Tex. June 24, 2020) (denying 

motion to transfer venue and finding that judicial economy was served by having the same 

district court try cases involving the same patents due to consolidation of the cases). 

Additionally, one of the cases SITO filed concerning the same patents was not filed in this 

District before the current action, and the transfer analysis must be evaluated at the date this case 

was filed. These facts do not weigh against transfer but remain neutral.

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Finally, while the Court recognizes the issues presented by the novel COVID-19 crisis, it 

also notes that such issues and challenges are not confined to one district or the other. Thus, 

given how rapidly issues evolve or dissolve, the Court agrees with Hulu that pandemic closures 

“do not weigh in favor of transfer.” Reply at 10. Thus, the Court finds this factor neutral. 

B. The Public Interest Factors Do Not Clearly Establish the Central District of 

California is a More Convenient Venue

The relevant public-interest factors also do not favor transfer. As previously noted, these 

factors include: (1) the administrative difficulties flowing from court congestion; (2) the local 

interest in having localized interests decided at home; (3) the familiarity of the forum with the 

law governing the case; and (4) the avoidance of unnecessary problems of conflict of laws or the 

application of foreign law. Volkswagen II, 545 F.3d at 315. The Court will also consider each of 

these factors in turn.

1. Administrative Difficulties

Administrative difficulties manifest when litigation accumulates in congested centers 

instead of being handled at its origin. Gulf Oil, 330 U.S. at 508. This factor concerns “whether 

there is an appreciable difference in docket congestion between the two forums.” Parsons v. 

Chesapeake & Ohio Ry. Co., 375 U.S. 71, 73 (1963); Koehring Co. v. Hyde Constr. Co., 324 

F.2d 295, 296 (5th Cir. 1963). The relevant inquiry under this factor is the speed with which a 

case comes to trial and is resolved. Genentech, Inc., 566 F.3d at 1347.

Hulu states that transfer would alleviate congestion in this Court’s docket because the 

Central District of California has 542 pending cases per judgeship, while this District has 539. 

Mot. to Transfer at 11. Hulu goes on to state that three new judges have been confirmed in the 

proposed transferee district to alleviate the congestion even more. Id. SITO, on the other hand, 

argues against transfer because the Court has set a trial date of March 2022, and 12-month U.S. 

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District Court statistics ending in March 2020 show the median time to trial in this District is 

24.6 months compared to 29.3 months in the Central District of California. Resp. at 23. Hulu 

responds by pointing to the 12-month statistics ending in June 2020, which show the median 

time to trial is 1.2 months shorter in the Central District of California compared to this District. 

Reply at 11.

Because the statistics proffered by the parties cover different time frames, comparing the 

two is not an exact science. Further, the comparison of time to trial throughout the Western 

District of Texas may overlook a faster time-to-trial within the Waco Division. Importantly, the 

Waco Division has its own patent-specific Order Governing Proceedings ("OGP") that ensures 

efficient administration of patent cases. In fact, a trial date has already been set in March 2022, 

which is roughly 13 months away. While the proffered statistics indicate that time to trial for 

civil cases may be faster in the Central District of California, it does not constitute an 

“appreciable difference in docket congestion.” Based on the parties’ statistics, the existing trial 

date was set sooner than average for the median timeframes of both districts. If anything, these 

facts indicate a greater efficiency of bringing cases, especially patent cases, to trial in the 

Western District of Texas than in the Central District of California. This factor weighs against 

transfer.

2. Local Interests

There is “a local interest in having localized controversies decided at home.” Gulf Oil 

Corp. v. Gilbert, 330 U.S. 501, 511 (1947); Piper Aircraft, 454 U.S. 235, 260 (1981).

Hulu argues that the Central District of California has a stronger local interest in this 

litigation than the Western District of Texas because Hulu maintains its headquarters there and 

its engineers developed the accused technology there. Mot. to Transfer at 11. To further bolster 

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this position, Hulu points out SITO has no ties to this District and that SITO has more employees 

in the Central District of California than this District. Id. In response, SITO argues the Western 

District of Texas has a localized interest because Hulu maintains a San Antonio location and has 

other ties to this District. Resp. at 24. SITO also argues it has significant connections to this 

District. Id. Finally, SITO advances the argument that “[I]t is generally a fiction that patent cases 

give rise to local controversy or interest, particularly without record evidence suggesting 

otherwise.” Id. (quoting Found. Med., Inc. v. Guardant Health, Inc., No. 2:16-cv-00523-JRGRSP, 2017 WL 590297, at *4 (E.D. Tex. Feb. 14, 2017) (internal quotes omitted)). Hulu replies 

by stating SITO does not have any connection to this District and that the sale of an accused 

product nationwide does not create a local interest. Reply at 11. 

The Court finds this factor weighs only slightly in favor of transfer for the reasons that 

follow. First, as Hulu rightly argues the sale of an accused product offered nationwide does not 

allow for any venue to claim a substantial interest. In re Hoffmann-La Roche Inc., 587 F.3d 

1333, 1338 (Fed. Cir. 2009). SITO’s argument in this regard speaks more to whether Hulu could 

reasonably expect to be hailed into court in this District, not whether this District is more 

convenient for parties, witnesses, and in the interest of justice. In contrast, the localized interest 

of a district exists when “the cause of action calls into question the work and reputation of 

several individuals residing in or near that district who presumably conduct business in that 

community.” Id. at 1336. Such a situation presents itself here. 

However, these interests are mitigated because a company’s presence in a particular 

district weighs only slightly in favor of transfer because “it is generally a fiction that patent cases 

give rise to local controversy or interest, particularly without record evidence suggesting 

otherwise.” Found. Med., Inc., 2017 WL 590297, at *4. Along with this fiction, Hulu does have 

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employees in this District, providing at least a slight localized interest in this case. Accordingly, 

the Court finds that the local interest in having localized interests decided at home weighs only 

slightly in favor of transfer.

3. Familiarity of the Forum with the Law That Will Govern the Case

Both parties agree that this factor is neutral. Mot. to Transfer at 11; Resp. at 24. The 

Court also agrees.

4. Avoiding Conflict of Laws and the Application of Foreign Laws Factors

Both parties agree that this factor is neutral. Mot. to Transfer at 11; Resp. at 24. The 

Court also agrees.

IV. CONCLUSION

Having found that the access to proof and localized interests factors weigh only slightly

in favor of transfer while the availability of compulsory process to secure the attendance of

witnesses, the cost of attendance for willing witnesses, and the administrative difficulties flowing 

from court congestion weigh against transfer with the other factors being neutral, the Court finds 

that Hulu has not met its “heavy burden” to demonstrate that the Central District of California is 

“clearly more convenient.” Volkswagen II, 545 F.3d at 314 n.10, 315. 

IT IS THEREFORE ORDERED that Defendant Hulu’s Motion to Transfer (ECF No. 

29) is DENIED. It is further ORDERED that the above-styled case remain on the docket of 

United States District Judge Alan D Albright.

SIGNED this 24th day of March, 2021.

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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