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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS LLC,

 Plaintiff

-vsMICROSOFT CORPORATION,

 Defendant

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W-20-CV-00454-ADA

W-20-CV-00457-ADA

W-20-CV-00460-ADA

W-20-CV-00461-ADA

W-20-CV-00463-ADA

W-20-CV-00464-ADA

W-20-CV-00465-ADA

MEMORANDUM OPINION AND ORDER DENYING 

DEFENDANT MICROSOFT CORPORATION’S MOTION FOR RECONSIDERATION

Before the Court is Defendant Microsoft Corporation’s (“Microsoft”) Motion for 

Reconsideration of its Motion to Transfer Venue to Austin Division. ECF No. 123.1 Plaintiff 

WSOU Investments, LLC d/b/a Brazos Licensing and Development’s (“Brazos”) Opposition to 

Defendant’s Motion was timely filed in response. ECF No. 126. Microsoft filed a reply (ECF 

No. 130), and Brazos a sur-reply (ECF No. 147). Having considered all the relevant briefing, the 

Court DENIES Microsoft’s Motion.

I. BACKGROUND

Brazos filed suit against Microsoft on June 2, 2020. ECF No. 1. On October 2, 2020, 

Microsoft sought transfer to the Austin Division of the Western District of Texas. ECF No. 31. 

Microsoft argued that the sources of proof, willing witness, practical problems, and local interest 

factors favored transfer. Per Microsoft, all other factors were neutral. On April 7, 2021, the Court 

1 All references to “ECF No.” correspond to docket entries in No. 6:20-cv-00454, the first-listed case in the caption 

above. The docket entry number for the motion for reconsideration in the remaining cases is as follows: No. 6:20-

cv-457, ECF No. 98; No. 6:20-cv-460, ECF No. 114; No. 6:20-cv-461, ECF No. 111; No. 6:20-cv-463, ECF No. 

101; No. 6:20-cv-464, ECF No. 113; No. 6:20-cv-465, ECF No. 108.

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denied Microsoft’s motion. ECF No. 74. Ultimately, this Court found that the sources of proof, 

willing witness, administrative difficulties, and local interest factors weighed against transfer to 

one degree or another. Having failed to meet the requisite burden, the Court denied Microsoft’s 

request. More than eleven months later, on March 18, 2022, and on the eve of dispositive motion 

briefing with only three months to trial, Microsoft seeks transfer to the Austin Division. ECF No. 

123. The Motion has been fully briefed and is ripe for review.

II. LEGAL STANDARD

A. Motions for Reconsideration under Rules 59(e) and 54(b)

Under Federal Rule of Civil Procedure 59(e), courts may reconsider prior rulings based 

upon “(a) an intervening change in controlling law; (2) the availability of new evidence not 

previously available; or (3) the need to correct a clear error of law or prevent manifest injustice.” 

In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002).

Rule 54(b) of the Federal Rules of Civil Procedure states “any order or other decision, 

however designated, that adjudicates fewer than all the claims or the rights and liabilities of 

fewer than all the parties does not end the action as to any of the claims or parties and may be 

revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ 

rights and liabilities.” Thus, under Rule 54(b), the Court can reverse an interlocutory order, such 

as an order on a motion to transfer venue, “for any reason it deems sufficient, even in the absence 

of new evidence or an intervening change in or clarification of the substantive law.” Kroger, 864 

F.3d at 336 (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th 

Cir. 1990)). In comparison to Rule 59(e), Rule 54(b)’s approach is intended to reflect the 

“inherent power of the rendering district court to afford such relief from interlocutory judgments 

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as justice requires.” Id. at 337 (quoting Cobell v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015)).

Still:

So long as courts recognize that they have the discretion to grant 

reconsideration even in the absence of any such showing, the 

flexible approach permits them to require a showing of one of the 

following factors to justify reconsideration: an intervening change 

in law; availability of previously unavailable new evidence; or a 

need to correct a clear legal error or to prevent manifest injustice.

United States v. 89.9270303 Bitcoins, No. SA-18-CV-0998-JKP, 2021 WL 5203337, at *1 (W.D. 

Tex. Nov. 8, 2021) (internal quotation marks omitted); see also S.L.V. v. Rosen, No. SA-21-CV0017-JKP, 2021 WL 243442, at *5 (W.D. Tex. Jan. 25, 2021) (same). “Thus, even though the 

standard for evaluating a motion to reconsider under Rule 54(b) is ‘less exacting than that 

imposed by Rules 59 and 60 . . . considerations similar to those under Rules 59 and 60 inform the 

Court’s analysis.’” Turk v. Pershing LLC, No. 3:09-CV-2199-N, 2019 WL 13074701, at *1 

(N.D. Tex. Aug. 1, 2019) (quoting Rotella v. Mid-Continent Cas. Co., 2010 WL 1330449, at *5 

(N.D. Tex. Apr. 5, 2010)). Ultimately, the critical inquiry is whether justice requires relief from 

the interlocutory order. Kroger, 864 F.3d at 337.

The more flexible approach under Rule 54(b) to reviewing motions for reconsideration 

should not lead to such motions automatically being granted. Otherwise, motions for 

reconsideration become constant reassessments of the Court’s work. See Turk v. Pershing ̧ 2019 

WL 13074701, at *1 (“[A] district court’s broad discretion under rule 54(b) must be exercised 

sparingly in order to forestall the perpetual reexamination of orders and the resulting burdens and 

delays.”).

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B. Intra-District Motion to Transfer Venue under § 1404

Motions to transfer patent cases are governed by regional circuit law. In re TS Tech USA 

Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). A party seeking transfer “should not delay filing” 

and must act with “reasonable promptness.” In re Wyeth, 406 F. App’x 475, 477 (Fed. Cir. 

2010); Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989). Otherwise, “the court 

[will] expend time and effort that might become wasted upon transfer.” Wyeth, 406 F. App’x at 

477.

In the Fifth Circuit, the § 1404(a) factors apply to both inter-district and intra-district 

transfers. In re Radmax Ltd., 720 F.3d 285, 288 (5th Cir. 2013). It is commonly understood that 

trial courts have even greater discretion in granting intra-district transfers than they do in the case 

of inter-district transfers. See, e.g., Sundell v. Cisco Systems Inc., No. 96-41191, 1997 WL 

156824, at *1 (5th Cir. 1997) (“Under 28 U.S.C. § 1404(b), the district court has broad discretion 

in deciding whether to transfer a civil action from a division in which it is pending to any other 

division in the same district.”). Compare Liles v. TH Healthcare, Ltd., No. 2:11–cv–528–JRG, 

2012 WL 3930616, at *6 (E.D. Tex. Sept. 10, 2012) (“[C]ourts in this district view 1404(a) 

motions for intra-district transfer of venue with heightened caution.”), Madden v. City of Will 

Point, Tex., No. 2:09–CV–250 (TJW), 2009 WL 5061837, at *3 (E.D. Tex. Dec. 15, 2009) 

(opining that “greater deference [is] available to [district courts] when considering intra-district 

transfers”), and Rios v. Scott, No. 1:02–CV–136, 2002 WL 32075775, at *4 (E.D. Tex. Jul. 13, 

2002) (“[T]rial courts should entertain Section 1404(a) motions for intra-district change of venue 

with caution, and should not grant the requested relief unless the balancing of convenience and 

public interest factors results in a firm conclusion that the proposed new venue is decidedly more 

convenient and in the interest of justice.”), with Cantrell v. City of Murphy, No. 6:09–cv–225, 

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2010 WL 786591, at *2 (E.D. Tex. Mar. 1, 2010) (“The § 1404(a) analysis remains the same 

regardless of whether the party moves for an inter-district or intra-district transfer.”).

Section 1404(a) provides that, for the convenience of parties, witnesses and in the 

interests of justice, a district court may transfer any civil action to any other district or division 

where it might have been brought or to any district or division to which all parties have 

consented. “Section 1404(a) is intended to place discretion in the district court to adjudicate 

motions for transfer according to an ‘individualized, case-by-case consideration of convenience 

and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting VanDusen v. 

Barrack, 376 U.S. 612, 622 (1964)). A motion for transfer, whether intra- or inter-district, 

involves a two-step analysis: (1) whether the case could have been properly brought in the forum 

to which transfer is sought and (2) whether transfer would promote the interest of justice and/or 

convenience of the parties and witnesses. Radmax, 720 F.3d at 288; see also In re Volkswagen of 

America, Inc., 545 F.3d 304, 312, 314 (5th Cir. 2004) (en banc) (hereinafter Volkswagen II).

The Fifth Circuit has held that “[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. US. Fid & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004); see also Radmax, 

720 F.3d at 290 (“We do not suggest—nor has this court held—that a raw counting of the factors 

in each side, weighing each the same and deciding transfer only on the resulting ‘score,’ is the 

proper methodology.”). The private 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.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 

2004) (hereinafter Volkswagen I) (citing to Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 

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(1982)). The public 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 of the application of foreign law.” Id.

The burden to prove that a case should be transferred for convenience falls on the moving 

party. Volkswagen II, 545 F.3d at 314. The burden that a movant must carry is not that the 

alternative venue is more convenient, but that it is clearly more convenient. Id. at 314–15. 

Although the plaintiff’s choice of forum is not a separate factor entitled to special weight, respect 

for the plaintiff’s choice of forum is encompassed in the movant’s elevated burden to “clearly 

demonstrate” that the proposed transferee forum is “clearly more convenient” than the forum in 

which the case was filed. Id. at 314–15.

III. ANALYSIS

Microsoft’s initial motion sought this Court’s reconsideration purely under Rule 59(e) of 

the Federal Rules of Civil Procedure. Defendant never mentioned Rule 54(b) in its initial motion. 

In its motion, Microsoft cites to Benjamin Moore for the proper legal standard of “an intervening 

change in controlling law.” ECF No. 123 at 8 (citing Benjamin Moore, 318 F.3d at 629). Yet, 

immediately thereafter, Microsoft changes the standard to a “clarification of controlling law.” Id.

Brazos immediately identified the discrepancy in its response, arguing that “[i]t is unsurprising 

that Microsoft refers to a ‘clarification of controlling law,’ see Mot. For Recons. at 1, 8, rather 

than using the correct legal standard: an ‘intervening change in controlling law,’ Benjamin 

Moore, 318 F.3d at 629.” ECF No. 126 at 6. In reply, Microsoft cited an entirely new case, 

Austin v. Kroger Tex., L.P., to advocate for a liberal Rule 54(b) standard that, at the very least, 

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encompasses “clarification[s] of substantive law.” ECF No. 130 at 1–2 (citing Kroger, 864 F.3d 

at 336).

Whether intentional or by mistake, Microsoft’s sudden shift is improper. Parties are not 

free to argue under a legal standard in an initial motion, only to supersede the argument with a 

more liberal legal standard on reply. However, because the newly requested legal basis is the 

correct legal standard, see Kroger, 864 F.3d at 336 (“Rule 59(e) governs motions to alter or 

amend a final judgment; Rule 54(b) allows parties to seek reconsideration of interlocutory 

orders. . .”), and makes no impact on the ultimate result, the Court addresses the motion under 

the more lenient Rule 54(b) standard. 

At the outset, the Court notes that Microsoft’s motion is untimely. Next, Microsoft fails 

to show an intervening change in controlling law, the availability of new evidence not previously 

available, or a need to correct a clear error of law or prevent manifest injustice. Additionally, 

even under a more liberal rule 54(b) standard, the Court remains unpersuaded that transfer to the 

Austin Division is clearly more convenient and necessary to achieve justice. Having reviewed 

each of the factors under the original and “updated” briefing, the Court notes that Microsoft 

merely disagrees with the Court’s rulings on issues decided nearly a year before. Defendant’s 

late attempt to take a second bite at the apple is meritless and should not disturb the parties’ or 

Court’s efforts in timely bringing this case to a resolution.

A. The Motion for Reconsideration is Untimely

Preliminarily, the Court finds Microsoft’s motion for reconsideration to be untimely. 

While Rule 54(b) does not establish any time limit on seeking reconsideration other than before a 

final judgment, “parties seeking a change of venue should act with ‘reasonable promptness.’” 

Peteet, 868 F.2d at 1436. Courts consider a party’s delay in denying a motion to transfer. Id.

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While Microsoft timely moved to transfer this case in the first instance, its delay in seeking 

reconsideration is unwarranted. This Court denied Microsoft’s motion to transfer on April 7, 

2021. ECF No. 74. More than eleven months later, on March 18, 2022, Microsoft seeks 

reconsideration. ECF No. 123. But the basis for Microsoft’s motion is on “clarifications of 

controlling law” or revelations in discovery that Brazos overstated its alleged connections to 

Waco.

As noted below, none of the “clarifications in the controlling law” dictate a reversal of 

the Court’s prior order upon reconsideration. And, even if Microsoft viewed the opinions to 

which it cites as clarifying the controlling law, it should have promptly sought reconsideration. 

Microsoft waited more than four months after the most recent cases from this district.

Additionally, Microsoft waited approximately five months after discovering Brazos’s “declared 

‘deep roots’ in Waco [were] nothing more than a litigation-inspired façade.” ECF No. 123 at 5. 

Microsoft’s motion largely hinges on the characterization of Brazos, its ties to Waco, the sources 

of proof, and relevant witnesses. Despite “uncovering” said information in the fall of 2021, 

Microsoft waited until the spring of 2022 to seek reconsideration of the Court’s order. Microsoft 

should have been alerted even sooner, given the Federal Circuit’s language in Juniper, a case to 

which Microsoft amply cites in its motion to reconsider. In that case, the Federal Circuit stated 

that “Brazos’s presence in the Western District of Texas is insubstantial compared to the 

presence of Juniper in the Northern District of California. Moreover, it appears that the 

relationship between the Texas forum and Brazos is merely the product of pursuing litigation in a 

preferred forum and is entitled to little weight.” In re Juniper, 14 F.4th 1313, 1320–21 (Fed. Cir. 

2021). Such language did not constitute a change in controlling law, but certainly noted a

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difference in discretionary review between this Court and the Federal Circuit. Microsoft could 

have promptly urged this Court to reconsider. Instead, it waited until three months before trial.

In the meantime, this Court held a Markman, completed fact discovery, oversaw the 

exchange of expert reports and rebuttal reports, expert depositions have taken place, and resolved 

numerous discovery disputes. See ECF Nos. 42, 69, 87, 98, 105; see also In re Lab. Corp. of Am. 

Holdings, No. 2022-127, 2022 WL 1498775, at *2 (Fed. Cir. May 12, 2022) (denying petition 

for mandamus and noting “the court invested considerable resources conducting a Markman

hearing, issuing its claim construction order, and presiding over discovery”). Upon filing the 

motion to reconsider, the parties were days away from dispositive motion briefing and a mere 

three months from the scheduled trial date. Such a delay creates avoidable complications and 

will inevitably delay the trial. This Court recently transferred several cases to the Austin 

Division. Upon transfer, the cases remain either unopened or were immediately stayed until 

further order of the court. See infra Part III.C.2.a (collecting cases).

Microsoft places the blame for its delay squarely on Brazos, arguing it is a “direct 

consequence of [Brazos’s] unusual and languid prosecution of these cases.” ECF No. 123 at 2. 

More specifically, Microsoft contends that any consequential delay is a product of Brazos’s 

“exaggerations as to its connections to the Waco forum, . . . and [Brazos’s] ever-shifting 

infringement theories and accused products that continuously altered the scope of the case.” ECF 

No. 130 at 2–3. Microsoft’s attempt to “burden shift” any delay to Brazos is of no moment. First, 

the parties continue to argue about the “exaggerated connections” between Brazos and Waco, but 

any alleged differences of opinion concerning such connections were discovered in the fall of 

2021, several months before Microsoft filed the motion for reconsideration. And, regarding the 

“shifting” accused products, Microsoft points to no witnesses that now reside in Texas given the 

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changes. The calculus from the prior order remains unchanged. Thus, Brazos’s alleged delay 

makes no difference to the analysis.

Microsoft’s failure to promptly seek reconsideration of the transfer order should not be 

rewarded. See In re Lab. Corp., 2022 WL 1498775, at *2 (finding “the district court plausibly 

concluded that LabCorp failed to seek transfer with reasonable promptness”); Wyeth, 406 F. 

App’x at 477 (“Without reasonable promptness on the part of the movant, a case proceeds, 

requiring the court to expend time and effort that might become wasted upon transfer.”); Peteet,

868 F.2d at 1436 (“Parties seeking a change of venue should act with reasonable promptness.”); 

Bianco v. Globus Med., Inc., No. 2:12-CV-147-WCB, 2014 WL 61071, at *4 (E.D. Tex. Jan. 6, 

2014) (“There is no suggestion that the two grounds on which [defendant’s] motion for 

reconsideration is actually based . . . arose only within the last several days or weeks. In short, 

nothing happened on or after [the decision prompting reconsideration], that gave [defendant] an 

excuse for seeking reconsideration of its original transfer motion 14 months after the original 

order denying transfer, and less than two weeks before trial.”). In sum, Microsoft’s long delay in 

filing the motion for reconsideration sufficiently warrants denial of the motion alone. Coupled 

with the Court’s remaining analysis, Microsoft’s motion must be denied.

B. Motion for Reconsideration Under Rule 54(b)

While Rule 54(b) permits a Court to reverse itself for any reason it deems sufficient, the 

same factors for Rule 59(e) may be required as “the absence of such a showing would exhibit no 

injustice to denying reconsideration.” United States v. 89.9270303 Bitcoins, 2021 WL 5203337, 

at *1; see also Goosehead Ins. Agency, LLC v. Williams Ins. & Consulting, Inc., 533 F. Supp. 3d 

367, 380 (N.D. Tex. 2020) (explaining that the “guideposts [provided under Federal Rules of 

Civil Procedure 59 and 60] are informative to the Court’s reconsideration of a pre-final-judgment 

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order”); Fishman Jackson PLLC v. Israely, 180 F. Supp. 3d 476, 481 (N.D. Tex. 2016) (“Even 

though the standard for evaluating a motion to reconsider under Rule 54(b) would appear to be 

less exacting than that imposed by Rules 59 and 60, considerations similar to those under Rules 

59 and 60 inform the court’s analysis.”) (cleaned up). Otherwise, motions for reconsideration 

would simply become vehicles “for rehashing evidence, legal theories, or arguments that could 

have been offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 

473, 479 (5th Cir. 2004). The Court will first look to each of the Rule 59 factors that guide the 

Court’s Rule 54(b) analysis, followed by another discretionary review of the § 1404(a) factors.

1. Microsoft cannot point to an intervening change in controlling law

Under Rule 59(e), Microsoft must demonstrate an intervening change in controlling law. 

See Benjamin Moore, 318 F.3d at 629; see also Kroger, 864 F.3d at 336. Microsoft argues that 

“[t]he Federal Circuit recently heightened its effort to achieve uniform application of 28 U.S.C. 

§ 1404 across all District Courts.” ECF No. 123 at 9. But recent opinions from the Federal 

Circuit have not brought about intervening changes in the controlling law. This Court squarely 

addressed this issue in Ravgen, Inc. v. Lab. Corp. of America Holdings:

[T]he Federal Circuit opinions that provided a “new calculus,” per 

[defendant], cite back to prior opinions to illustrate that such a 

calculus was not new. See, e.g., In re Quest Diagnostics Inc., No. 

2021-193, 2021 WL 5230757, at *2 n.3 (Fed. Cir. Nov. 10, 2021) 

(“[W]e have repeatedly said....”); id. at *3 (“[W]e have repeatedly 

explained....”); In re Apple Inc., No. 2021-181, 2021 WL 5291804 

at *3, 2021 U.S. App. LEXIS 33788 at *10 (Fed. Cir. Nov. 15, 

2021) (“We have repeatedly held....”); id. at *4, 2021 U.S. App. 

LEXIS 33788, at *10 (“But we have repeatedly....”); id. at *5, 

2021 U.S. App. LEXIS 33788, at *14 (“We have repeatedly 

rejected....”); In re Atlassian Corp. PLC, No. 2021-177, 2021 WL 

5292268 at *3, 2021 U.S. App. LEXIS 33790 at *9 (Fed. Cir. Nov. 

15, 2021) (“[W]hich we have repeatedly explained....”).

No. W-20-CV-00969-ADA, 2022 WL 272115, at *2 (W.D. Tex. Jan. 28, 2022). The Federal 

Circuit did not opine otherwise. See In re Lab Corp., 2022 WL 1498775, at *2 (“The district 

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court further found that Quest and the other decisions of this court that [defendant] relied on to 

warrant allowing its belated transfer request merely applied existing law, and thus [defendant]

could have made those same arguments in a timely motion, but failed to do so. We do not see 

any basis to disturb those findings on mandamus.”). 

Microsoft vaguely alleges that the Federal Circuit’s efforts clarified controlling law;

however, Microsoft fails to point to specific errors this Court made with particularity. Instead, 

Defendant simply rehashes prior arguments with new citations. Microsoft does not cite a single 

case that became available since this Court’s prior denial of the motion to transfer that presents 

novel arguments or intervening changes in controlling law. That recent opinions from the Federal 

Circuit have not constituted intervening changes in the controlling law—elucidated in Ravgen

and In re Laboratory Corp. of America—bears repeating, at least because Microsoft struggles 

against it. The Court, therefore, addresses each of Microsoft’s opinions in turn, based on the 

order in which they were filed.

First, Microsoft cites to In re Juniper Networks, Inc., 14 F.4th 1313, for the proposition 

that documents moved “for litigation purposes are of no relevance in deciding the transfer issue 

and should not be given weight in the convenience analysis.” ECF No. 123 at 11. Such 

instruction was not an intervening change in the law, but the Federal Circuit’s reiteration of In re 

Hoffmann-La Roche Inc., 587 F.3d 1333, 1336–37 (Fed. Cir. 2009). Defendant’s own citation to 

In re Juniper, ECF No. 123 at 11, illustrates the instruction was not new; it notes Juniper cited to 

In re Hoffmann-La Roche. Microsoft also cites to Juniper to show that “failure to timely 

prosecute these cases . . . further demonstrates that rapid disposition of the case is not ‘worthy of 

important weight.’” ECF No. 123 at 14. But that statement cites to In re Morgan Stanley, 417 F. 

App’x 947, 950 (Fed. Cir. 2011), wherein the Federal Circuit minimized the importance of the 

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speed to trial, stating that “[plaintiff] acknowledges it does not make or sell any product that 

practices the claimed invention [and] therefore is not in need of a quick resolution of this case 

because its position in the market is threatened.”

Second, Microsoft relies on In re Google, No. 2021-170, 2021 WL 4427899 (Fed. Cir. 

Sept. 27, 2021), to discuss the relevance of time in conjunction with the 100-mile rule. ECF No. 

123 at 11. But both the Federal Circuit and Fifth Circuit have been cited for the same discussion

before. See In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009) (stating that the 100-mile 

rule should not be rigidly applied to provide more weight to witnesses outside both forums than 

to those in the transferee forum); see also Volkswagen I, 371 F.3d at 205 (stating the 100-mile 

rule and finding that additional travel time increases the probability of increased travel time and 

time away from home). The Federal Circuit itself acknowledges that its prior opinions have been 

mindful of the rationale for this rule. See Google, 2021 WL 4427899, at *4 (citing Genentech, 

566 F.3d at 1344).

Third, Microsoft states that “[r]elative inconvenience where party witnesses still must 

travel for trial still outweighs speed to trial.” ECF No. 123 at 9 (citing In re Apple, No. 2021-187, 

2021 WL 4485016, at *2 (Fed. Cir. Oct. 1, 2021)). Again, this proposition is not new. The 

Federal Circuit cited to its own prior precedent, stating: “But as we have said previously, this 

factor is the ‘most speculative’ of the factors bearing on transfer and ‘should not alone outweigh 

all . . . other factors.’” In re Apple Inc., 2021 WL 4485016, at *2 (emphasis added) (quoting 

Genentech, 566 F.3d at 1347).

The fourth case cited by Microsoft is In re Google LLC, No. 2021-171, 2021 WL 

4592280 (Fed. Cir. Oct. 6, 2021). Again, Microsoft relies on the case for the time versus distance 

analysis of the convenience of willing witnesses factor, providing the following quote: 

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“Although the district court emphasized that Mr. Morris would have not have to travel as far 

from his home in Georgia to reach Waco than to reach the Northern District of California, the 

difference in distance is not as importance as the difference in travel time and the fact that the 

witness would be required to be away from home for several days in any event.” ECF No. 123 at 

12. But that statement immediately preceded a citation to the Federal Circuit’s order on 

September 27, 2021 in Google, 2021 WL 4427899, at *4, wherein it made the same statement 

and relied on Genentech and Volkswagen I, as noted above.

Fifth, Microsoft quotes In re NetScout Sys., Inc., No. 2021-173, 2021 WL 4771756, at *3 

(Fed. Cir. Oct. 13, 2021), stating “[t]he Fifth Circuit has stated that the convenience of the 

witnesses is best served if the court can ‘minimize the time when [witnesses] are removed from 

their regular work or home responsibilities.’” ECF No. 123 at 11–12. That is a direct quote from

Volkswagen I, as is evident in the Federal Circuit’s opinion and Microsoft’s briefing. See In re 

NetScout, 2021 WL 4771756, at *3; ECF No. 123 at 12.

Sixth, Microsoft cites to In re Pandora Media, LLC, No. 2021-172, 2021 WL 4772805, at 

*5 (Fed. Cir. Oct. 13, 2021), for the proposition that the 100-mile rule should not be rigidly 

applied when witnesses are required to travel a significant distance no matter where they testify. 

But the Pandora opinion bolsters that proposition by citing to an example from its November 9, 

2020 opinion, In re Apple Inc., 979 F.3d 1332, 1342 (Fed. Cir. 2020). And, again, the Genentech

and Volkswagen I opinions stand for the same proposition.

In re Quest Diagnostics Inc., No. 2021-193, 2021 WL 5230757 (Fed. Cir. Nov. 10, 

2021), is also cited as support for Microsoft’s arguments regarding the relevance of time under 

the convenience of the willing witnesses factor. ECF No. 123 at 12. Again, the opinion cites back 

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to the Google opinion from September 27, 2021, 2021 WL 4427899, which stems from the 

Genentech and Volkswagen I opinions predating this Court’s order denying transfer.

Of the remaining two cases, Microsoft suggests that In re Google LLC, No. 2021-178, 

2021 WL 5292267 (Fed. Cir. Nov. 15, 2021), is the first articulation of the principle that “[f]aster 

time to trial cannot override the convenience of the accused infringer’s party witnesses.” ECF 

No. 123 at 9. But, again, the Federal Circuit’s opinion cited to Genentech, 566 F.3d at 1347, and 

Apple, 979 F.3d at 1344 n.5, for this proposition.

Last, Microsoft cites to In re Netflix, No. 2022-110, 2022 WL 167470 (Fed. Cir. Jan. 19, 

2022), to show that the convenience of witnesses is probably the most important factor in 

transfer analysis. ECF No. 123 at 9, 11, 13. As can be expected, that point is a direct quote of

Juniper, which also quotes Genentech. 

This march through precedent, performed again for Microsoft’s benefit, exhibits that no 

intervening change in law occurred since this Court’s order denying Microsoft’s initial motion to 

transfer venue. Instead, if anything, Microsoft’s argument highlights the fact that it waited 

several months to bring the alleged changes in intervening law to the Court’s attention for timely 

resolution. Moreover, the Court finds nothing persuasive in Microsoft’s briefing that illustrates 

the “Federal Circuit recently heightened its effort to achieve uniform application” of the transfer 

factors worthy of disturbing the Court’s prior order. See ECF No. 123 at 9. Quite the opposite, in 

fact. This timing suggests that Microsoft’s intervening-changes-in-law argument is disingenuous.

2. Microsoft fails to identify new evidence not previously available

Microsoft argues that Brazos’s prior declaration “did not portray an accurate picture of”

Brazos. ECF No. 123 at 1–2. First, Microsoft argues that “Plaintiff’s connections to Waco were 

constructed for this litigation and are superficial, at best.” Id. at 3. Second, Brazos delivered its 

documents to Waco after the litigation was filed. Id. at 4. Third, the declarant, Mr. Hogan, 

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testified that he moved to Waco immediately before the filing of the cases, is not involved in 

Brazos’s patent acquisition process, and did not know if he would testify or even attend trial. Id.

at 5. Additionally, Microsoft characterizes his aspirations to connect with Waco as 

“aspirational.” Id.

Brazos contends that Microsoft relies on exhibits included with its original motion to 

transfer and deposition testimony of the managing director, chairman, and president of Brazos. 

ECF No. 126 at 4. Hence, “[i]nformation in Microsoft’s exhibits to its original motion is not 

‘new evidence not previously available.’” Id.

At the outset, the Court notes that Microsoft’s complaints regarding venue evidence 

could have been resolved had it conducted venue discovery. It chose not to do so. Having lost the 

motion, it cannot now point to old evidence that it has since developed to illustrate a change in 

evidence. If the Court were to permit this practice, parties would simply file premature motions 

only to later develop the facts and seek reconsideration. Microsoft’s decision to forego venue 

discovery carries consequences; ones that Microsoft should bear instead of the Court. See Mays 

v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir. 1997) (“the court should not grant the motion 

absent some showing that the evidence was not available during the pendency of the motion.”) 

(emphasis added); see also Engelhard Indus. v. Research Instrumental Corp., 324 F.2d 347, 352 

(9th Cir. 1963), cert. denied, 377 U.S. 923 (1964) (on a motion to reconsider a party is “obliged 

to show not only that this evidence was newly discovered or unknown to it until after the 

hearing, but also that it could not have discovered and produced such evidence at the hearing.”).

Microsoft similarly makes hay over the fact that two of Brazos’s witnesses are coming 

from Los Angeles and Hawaii. See ECF No. 123 at 13. But Microsoft made the very same 

argument in its original motion to transfer venue. See ECF No. 31 at 10–11. Microsoft did not 

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learn of a new location of the proposed witnesses. Instead, Microsoft simply asks this Court to 

rehash details contained in the original briefs.

3. There is no need to correct a clear error of law or prevent manifest 

injustice.

No clear error of law exists, nor does Microsoft point to any. Nor does Microsoft claim a 

manifest injustice—because it cannot. Waco is less than 100 miles from Austin. It is an easy 90-

minute drive. Microsoft cannot claim any real harm, because none exists. As noted below, an 

analysis of the § 1404 factors indicates that even reviewing Microsoft’s reasoning anew, this 

case should not be transferred to the Austin division, particularly at this juncture.

C. Motion for Transfer under § 1404(a)

For reasons similar to that of the original order denying transfer, the Court’s reasoning 

and findings remain largely undisturbed. In fact, contrary to Microsoft’s hopes, some factors now 

weigh more strongly against transfer. As a threshold matter, neither party disputes that the Austin 

Division is a proper forum. The Court finds that this suit could have been filed in the Austin 

Division.

1. The Private Interest Factors

a. The Relative Ease of Access to Sources of Proof

In considering the ease of access to sources of proof, a court looks to where documentary 

evidence, such as documents and physical evidence, is stored. Volkswagen II, 545 F.3d at 316. 

“[T]he question is relative ease of access, not absolute ease of access.” Radmax, 720 F.3d at 288 

(emphases in original). 

Microsoft argues that this factor favors transfer because discovery has shown that “access 

to sources of proof is relatively easier in Austin than in Waco.” ECF No. 123 at 11. Specifically, 

Microsoft argues that Brazos’s documents were moved to Waco for litigation purposes and 

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should be given little to no relevance. Id. (citing Juniper, 14 F.4th at 1320–21). Additionally, 

Microsoft notes that, at Brazos’s request, “Microsoft transported its source code to Austin for 

inspection at a facility with suitable control and security.” Id. at 10.

Brazos contends that the transportation of source code should not be given weight. 

Additionally, Brazos asserts that Microsoft wrongly states that discovery revealed none of the 

evidence is in the Waco Division. In fact, Brazos identifies that its servers are maintained and 

managed in Waco, and that physical documents, “including but not limited to, patent-related 

documents and records from the USPTO,” are stored here. ECF No. 126 at 9.

Microsoft’s argument is a non-starter. As Microsoft notes, “[d]iscovery revealed no 

relevant Microsoft documents in Texas.” ECF No. 123 at 10. And that source code was 

transferred to Austin after litigation began simply indicates that Microsoft’s sources of proof 

originated outside either forum. Microsoft cannot now point to the source code as a reason for 

transfer, particularly when it criticizes Brazos for moving documents to Waco for litigation 

purposes. See In re Hoffman-La Roche, 587 F.3d at 1336–37 (finding it a fiction that documents 

transferred to Texas for litigation purposes were “Texas” documents, and that absent transfer, 

they would have remained a source of proof in California); see also ECF No. 130 (“And any 

documents [Brazos] has in Waco were moved there only after litigation commenced. [Brazos] 

itself admits that post-litigation activities do not impact the § 1404(a) transfer factors and cannot 

transform Waco into a convenient forum. (citing In re EMC Corp., 501 F. App’x 973, 976 (Fed. 

Cir. 2013) (“Motions to transfer venue are to be decided based on ‘the situation which existed 

when suit was instituted.’”)”) (emphasis in original) (citations omitted).

2 Furthermore, 

Microsoft’s original motion stated that “any relevant Microsoft evidence is located in Redmond, 

2 Microsoft tries to distinguish this argument from the movement of its source code. Its argument is unavailing.

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Washington.” ECF No. 31 at 8. Microsoft then argued that the critical point was that no evidence 

was in the Waco Division; thus, the factor supported transfer. Id.

The Court’s original order gave little weight to Brazos’s vague declaration. See ECF No. 

74 at 6 (“Simply stating that there are generalized documents in a certain location, without more, 

carries little weight . . . Nevertheless, the only somewhat identifiable documents between the two 

venues, [Brazos’s] sources of proof, are in Waco.”). This fact remains the same. As previously 

found by this Court, this factor weighs slightly against transfer.

b. The Availability of Compulsory Process to Secure the Attendance 

of Witnesses

Microsoft argues that this factor is neutral. ECF No. 123 at 15. Brazos disagrees, pointing 

to patent prosecutor Richard A. Mysliwiec, who is allegedly within the subpoena power of the 

Waco Division but not the Austin Division. ECF No. 126 at 9. The parties previously agreed that 

this factor was neutral. ECF No. 74 at 6. The Court agrees.

c. The Cost of Attendance and Convenience for Willing Witnesses

“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 or inconvenience to witnesses increases in 

direct relationship to the additional distance to be travelled.” Volkswagen II, 545 F.3d at 

317 (quoting Volkswagen I, 371 F.3d at 203). The Federal Circuit has stated that courts should 

not apply the rule “rigidly” in some cases where witnesses would be required to travel a 

significant distance no matter where they testify. Apple, 979 F.3d at 1342 (discussing witnesses 

traveling from New York) (citing Volkswagen II, 545 F.3d at 317). “[T]he 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.” Google, 2021 

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WL 4427899, at *4. In essence, the Federal Circuit has found that time away from an 

individual’s home is a more important metric than distance. Id.

Microsoft concedes that “all Microsoft witnesses and all of WSOU’s knowledgeable 

witnesses are located outside this District. As such, unlike the situation addressed by the Court 

on Microsoft’s original motion, the potential witness list is limited, concrete, and comprised 

entirely by witnesses outside this Division, and indeed outside this District.” ECF No. 123 at 11. 

Contrary to Microsoft’s beliefs, this “development” does not cut in its favor. Microsoft 

essentially argues that because Waco does not allow for direct flights from all over the country, it 

will always be a more inconvenient forum. In support, Microsoft cites to a non-precedential 

Federal Circuit opinion that compares travel from the northeastern United States to California 

and Waco. See Google, 2021 WL 4427899, at *4. Those facts are distinctly different as relevant 

witnesses resided in the transferee forum. Moreover, the policy implications mitigate the efforts 

of federal courts situated in smaller cities in favor of transfer to those located in major cities 

under the guise of “convenience.” See Cont’l Airlines, Inc. v. Am. Airlines, Inc., 805 F. Supp. 

1392, 1398 (S.D. Tex. 1992) (“Additionally, the Court again notes that Defendants’ complaint 

that there is no commercial airline service to Galveston is entitled to little weight.”). The Fifth 

Circuit has condoned transfers to forums away from a party’s headquarters that are more than 

twice the distance between Waco and Austin. See Jarvis Christian Coll. v. Exxon Corp., 845 

F.2d 523, 528 (5th Cir. 1988) (“This case is not being consigned to the wastelands of Siberia or 

some remote, distant area of the Continental United States. The minor inconvenience Exxon may 

suffer in having to litigate this case in Tyler—only 203 miles distant—rather than in Houston, 

can in no rational way support the notion of abuse of discretion.”). As illustrated in Jarvis and a 

recent Fifth Circuit opinion, “some inconvenience is expected and acceptable.” Def. Distributed 

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v. Bruck, 30 F.4th 414, 433 (5th Cir. 2022). Traveling a mere 90 minutes is not a substantial 

inconvenience for those witnesses coming from out of state, particularly given the Fifth Circuit’s 

deference to a transfer twice as far as that between Waco and Austin when the party was 

removed from a forum encompassing its headquarters.

Time, under Federal Circuit opinions, only becomes a dominant factor over distance 

when a witness will “likely have to leave home for an extended period of time and incur travel, 

lodging, and related costs” regardless of venue. Apple, 979 F.3d at 1332. Here, the transferee 

venue contains no witnesses. Thus, almost all of the cases upon which Microsoft relies are 

inapposite, and the others actually cut against Microsoft’s position. In Apple, the Federal Circuit 

mitigated the inconvenience in the difference between the Western District of Texas and the 

Northern District of California for witnesses flying from New York. Id. The Federal Circuit 

noted that the 100-mile rule should not be rigidly applied when witnesses are required to travel 

no matter where they testify. Id. Therefore, the “witnesses will only be slightly more 

inconvenienced by having to travel to California than to Texas.” Id. (internal quotations omitted). 

The difference between Waco and Austin is significantly less than the difference between 

California and Texas. The Federal Circuit minimized any additional inconvenience in that case;

here, it is virtually reduced to nil. See also In re TracFone Wireless, Inc., 852 F. App’x 537, 

539–40 (Fed. Cir. 2021) (noting that the Court gave too much weight to witnesses that lived 

closer to the transferor forum but would have to travel regardless of the forum); Quest, 2021 WL 

5230757, at *2 (“[E]ven though the physical distance from Maryland and New Jersey to the 

Central District of California is greater than the distance to Waco, the record does not show that 

the total travel time for out-of-district witnesses would be significantly different.”); Volkswagen 

I, 371 F.3d at 205 (“[T]he task of scheduling fact witnesses so as to minimize the time when they 

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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.”). The commute from Austin to Waco is 

only an hour and a half, a feasible day trip. It is a drive this Court is intimately familiar with, and 

many from this area make the commute daily. For these witnesses, it is likely a round trip made 

only once. Again, any alleged inconvenience is incredibly small.

Microsoft further argues that travel to Austin is more convenient for witnesses coming 

from Seattle, Washington, Israel, and various locations in Eastern Europe because “the witnesses 

can work out of Microsoft’s Austin facility and take advantage of private workspace, conference 

rooms, and IT services such as the corporate internet connection and private intranet.” ECF No. 

123 at 12. These are incredibly minor inconveniences, and rather fictional. On the other hand, 

Brazos’s witnesses traveling from out of state would equally benefit for the use of Brazos’s 

office space at its Waco headquarters.

The Court does not need to address the relevance of Brazos’s proposed witnesses that 

reside within this forum because Microsoft’s arguments do not move the needle. Whether this 

factor continues to weigh against transfer or is neutral makes no difference on this Court’s 

decision to deny Microsoft’s motion, as no factors weigh in favor of transfer. Additionally, the 

Court reiterates its prior statements, finding that any alleged convenience in saving driving time 

is countered by the increased costs of hotels in Austin compared to Waco. This factor, at best for 

Defendant upon reconsideration, would be neutral.

d. All Other Practical Problems That Make Trial of a Case Easy, 

Expeditious and Inexpensive

When considering the private interest factors, courts must consider “all other practical 

problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d 

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at 314. Because of the advanced stage of this case, considerations of judicial economy, including 

the ease, expense, and timeliness of trial weigh heavier and are less speculative than at the time 

of the original motion.

Microsoft states that no delay is expected to happen should the Court transfer the case, 

that rapid disposition is not important given the nature of Brazos’s business, and that this factor 

should not outweigh the others alone—and yet, finds this factor strongly weighs in favor of 

transfer. ECF No. 123 at 14. At best, Microsoft’s arguments alone would amount to a neutral 

finding.

Brazos points out that this “case is near the finish line.” ECF No. 126 at 12. Trial is on 

the calendar for June 21, 2022, and the entire case proceeded in Waco without any 

inconveniences. Id. However, the prejudice of delay to Brazos “is significant.” Id.

Indeed, any delay caused by transfer is not “garden-variety” delay. See Radmax, 720 F.3d 

at 289; IBEW-NECA Sw. Health & Ben. Fund v. Duvall Elec., LLC, No. 3:10-CV-1079-B, 2011 

WL 711005, at *4 (N.D. Tex. Feb. 28, 2011) (“[T]ransferring the case will cause prejudice to the 

parties because key dates on the Scheduling Order, such as the dispositive motion deadline, 

which is two weeks away and the trial date, set in June, will be eliminated. Also, the Court finds 

that transferring the case at this stage of litigation will cause a duplication of efforts by this court 

and the transferee court as well as the parties.”); Godo Kaisha IP Bridge 1 v. Broadcom Ltd., No. 

2:16-CV-0134-JRG-RSP, 2017 WL 750290, at *9 (E.D. Tex. Feb. 27, 2017) (“[W]here the 

motion was not filed timely, the Court may consider the time and effort invested in the case 

before the motion was filed.”).

In the Court’s original order, this factor favored transfer. The Court finds no errors in its 

analysis worthy of reconsideration. Having conducted the Markman, numerous discovery 

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hearings, and after investing extensive time and effort into the case, this factor now weighs 

strongly against transfer. It is absurd to think that transfer at this stage of the case will result in 

nothing more than “garden variety” delay. While that may be true of a case in its infancy, and 

upon a timely filed motion to transfer venue, it cannot be said in this instance. Under these 

circumstances, this factor alone can warrant denial of transfer. See In re Google Inc., No. 2017-

107, 2017 WL 977038, at *2 (Fed. Cir. Feb. 23, 2017) (“That is not to say that judicial economy 

can never dominate the court's transfer analysis. As we have previously observed, it can play a 

significant role.”); see also In re Vistaprint Ltd., 628 F.3d 1342, 1346–47 (Fed. Cir. 2010) 

(denying a petition for mandamus despite witnesses and sources of proof in the transferee venue 

due to the Court’s familiarity with the patent and underlying technology from prior litigation).

2. The Public Interest Factors

a. Administrative Difficulties Flowing from Court Congestion

This factor considers “[t]he speed with which a case can come to trial and be 

resolved[.]” Genentech, 566 F.3d at 1347. In this analysis, court congestion is considered “the 

most speculative” factor, and when “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.” Id. However, as a trial advances towards its trial date, such speculation is reduced and 

this factor’s weight proportionally increases. 

Microsoft argues that this factor is neutral. ECF No. 123 at 15. Brazos disagrees and fears 

that transfer will threaten to impact the time to trial of these cases. ECF No. 126 at 13. 

Additionally, Brazos notes that while the Federal Circuit has explained reliance on time-to-trial 

statistics alone makes this factor speculative and insufficient to warrant denying transfer, “there 

is nothing speculative about the conclusion that these cases will proceed to trial more quickly in 

the Waco Division at this stage.” Id. at 14.

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In the Court’s original order denying transfer, it held that this factor weighed against 

transfer. Microsoft, in its original motion, also suggested that “no administrative difficulties 

flow[ed] from court congestion.” ECF No. 31 at 15. Microsoft again takes the same position. 

Here, speculation surrounding the time to trial is significantly reduced. The Court set the -454, -

461, and -465 cases for trial on June 21, 2022. The -460 and -464 cases are set for trial August 1, 

2022, and the -457 and -463 cases are set for August 15, 2022. Indeed, trial dates may be 

speculative, but any shift in the trial date is generally caused by a joint request from the parties, 

or due to a conflict in the Court’s schedule. When the latter occurs, the trial is reset for the next 

available date.

When Microsoft filed this motion, the trial dates were set. See ECF No. 116. After some 

juggling, two of the trial dates remain, with a third pushed back an extra two weeks to August 

15, 2022. Speculation has subsided, and regardless, the trials are occurring a mere few months 

from the originally scheduled date pursuant to the parties’ joint agreement. See ECF No. 109.

At the very least, noting that this motion was filed within three months of the scheduled 

trial date, it is a certainty that trial would be delayed upon transfer to the Austin Division. 

Transfer to the Austin Division requires no speculation, as cases previously transferred to that 

court either remain unassigned or were indefinitely stayed sua sponte without analysis. See

Charge Fusion Technologies LLC, v. Tesla, Inc., Case No. 1:22-cv-00488, ECF No. 42 (order 

granting stay until further order of the court); Sonrai Memory Limited v. Dell Technologies, Inc., 

Case No. 1:22-cv-487, ECF No. 57 (same); see also Corrino Holdings LLC v. Expedia, Inc., et 

al, Case No. 6:20-cv-00309, ECF No. 72 (transferred on April 12, 2022, and yet to be opened or 

assigned to a judge in the Austin Division); Ravgen, Inc., v. Natera, Inc., et al, 1:20-cv-00692, 

ECF No. 246 (pending motion to set a trial date, noting all pretrial briefing was complete before 

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this Court transferred the case on November 12, 2021). On the other hand, maintenance in this 

forum allows the case to march towards its scheduled trial date, or very soon thereafter. Clearly, 

trial will occur in this forum faster than the proposed transferee forum.

Because speculation subsides over time and this motion was filed three months before the 

scheduled trial date, this factor now weighs heavily against transfer.

b. Local Interest in Having Localized Interests Decided at Home

Under this factor, the Court must evaluate whether there is a local interest in deciding 

local issues at home. Volkswagen II, 545 F.3d at 317. “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.’” In re Apple, 979 

F.3d at 1344 (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010)) (emphasis in 

original). “Important considerations include the location of the injury, witnesses, and the 

Plaintiff’s residence.” Bruck, 30 F.4th at 435.

In Microsoft’s briefing for the original motion to transfer venue, it stated that “Plaintiff’s 

allegations regarding Microsoft’s presence in the Austin Division strongly suggest that if there is 

a localized interest, Austin has more of an interest in deciding this case than Waco—which has 

none.” ECF No. 31 at 14. The only tie Microsoft provides to Austin is that it employs 188 people 

in the Austin office. Id. Microsoft repeats the exact same arguments, including precisely the 

same citations.

Brazos credits the Court’s prior analysis and requests that this Court’s previous finding 

be left undisturbed. ECF No. 126 at 14. Brazos further argues that it maintains deep roots in the 

Waco community such that this factor weighs against transfer. Id. This Court previously found 

that this factor weighed against transfer, as the strongest factual connection between either venue 

was Brazos’s headquarters in Waco.

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Microsoft argues that Brazos maintains only a superficial local interest in Waco because 

“[Brazos] has yet to identify any witness from the Waco Division.” Yet, Microsoft does the 

same, holding out that Austin maintains a local interest despite conceding that “[d]iscovery 

showed that all Microsoft witnesses and all of [Brazos’s] knowledgeable witnesses are located 

outside this District.” ECF No. 123 at 11. Microsoft’s argument must apply to both sides. Most 

importantly, this factor “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.” Apple, 979 F.3d at 1345 (emphasis in original). Here, neither party points to 

connections between either venue that connect to events that gave rise to the suit. Instead, both 

parties point to a general presence in the respective forums. 

Accordingly, upon review, this Court finds that the factor is neutral. However, such a

change makes no difference in the result, and would not have changed the ultimate disposition of 

the original transfer motion.

c. All remaining factors are neutral

The Court agrees that all remaining factors, including the familiarity of the forum with 

the law and conflict of laws are neutral.

3. The Austin Division is not a clearly more convenient forum

“At the end of the day, § 1404(a) balances a number of case-specific factors, not just 

convenience. Further, § 1404(a) commits the balancing determination to the sound discretion of 

the trial court based not on per se rules but rather on an individualized, case-by-case 

consideration of convenience and fairness.” Vistaprint, 628 F.3d at 1346. Here, having 

concluded that three factors weigh against transfer, five are at most neutral, and none weigh in 

favor of transfer, the Court finds that Microsoft fails to meet its burden, yet again, to show that 

the Austin Division is a clearly more convenient forum. Microsoft’s underlying plea is that this 

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case would be more conveniently tried in a big city. But that is not the standard. As the Fifth 

Circuit recently noted:

When a defendant is haled into court, some inconvenience is 

expected and acceptable. Assuming that jurisdiction exists and 

venue is proper, the fact that litigating would be more convenient 

for the defendant elsewhere is not enough to justify transfer. In 

other words, the standard is not met by showing one forum is more 

likely than not to be more convenient, but instead the party must 

adduce evidence and arguments that clearly establish good cause 

for transfer based on convenience and justice.

Bruck, 30 F.4th at 433 (emphasis added). For these reasons, Microsoft’s motion for 

reconsideration must be denied.

IV. CONCLUSION

For the reasons stated above, Defendant Microsoft Corporation’s Motion for 

Reconsideration of its Motion to Transfer Venue to Austin Division (ECF No. 123) is DENIED. 

SIGNED this 9th day of June, 2022.

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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