IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND

DEVELOPMENT, 

Plaintiff,

v. 

ZTE CORPORATION, ZTE (USA) INC., 

AND ZTE (TX), INC. 

Defendants.

§

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§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

CIVIL ACTION NO. 6:20-cv-487 

CIVIL ACTION NO. 6:20-cv-488 

CIVIL ACTION NO. 6:20-cv-489 

CIVIL ACTION NO. 6:20-cv-490 

CIVIL ACTION NO. 6:20-cv-491 

CIVIL ACTION NO. 6:20-cv-492 

CIVIL ACTION NO. 6:20-cv-493 

CIVIL ACTION NO. 6:20-cv-494 

CIVIL ACTION NO. 6:20-cv-495 

CIVIL ACTION NO. 6:20-cv-496 

CIVIL ACTION NO. 6:20-cv-497 

JURY TRIAL DEMANDED

RESPONSE OPPOSING ZTE (USA) INC.’S MOTION TO DISMISS OR IN THE 

ALTERNATIVE TRANSFER VENUE

 

Case 6:20-cv-00497-ADA Document 34 Filed 11/06/20 Page 1 of 14
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ZTE (USA) Inc.’s (“ZTE USA”) motion to dismiss or transfer should be denied because: 

(1) venue is proper in this District and (2) ZTE USA’s cursory motion to transfer under § 1404 

does not satisfy ZTE USA’s heavy burden of proving the NDTX is clearly more convenient than 

this District. To the extent necessary, WSOU Investments, LLC doing business as Brazos 

Licensing and Development (“WSOU”) requests the opportunity to conduct discovery to test ZTE 

USA’s allegation that it does not maintain a regularly established place of business in this District.

A. Venue is proper because ZTE USA is deemed to reside in this District.1

Venue is proper because ZTE USA is deemed to reside here under the plain terms of 28 

U.S.C. §§ 1391(d) and 1400(b). Under § 1400(b) of chapter 28, a civil action for patent 

infringement “may be brought in the judicial district where the defendant resides.” 28 U.S.C. § 

1400(b). Section 1400(b) of chapter 28 does not define “reside.” Instead, for states with multiple 

districts, § 1391(d) of chapter 28 defines where a corporation resides “[f]or purposes of venue 

under this chapter[.]” See 28 U.S.C. 1391(d) (emphasis added). 

Because “this chapter” refers to chapter 87 of title 28, which includes §1400(b), the 

definition of “reside” found in § 1391(d) “for purpose of venue under this chapter” must be 

incorporated in § 1400(b). See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 

1575 (Fed. Cir. 1990), sometimes incorrectly cited as abrogated by TC Heartland LLC v. Kraft 

Foods Group Brands LLC, 137 S. Ct. 1514, 197 L. Ed. 2d 816 (2017).2 

Section 1391(d) states that, in states with multiple districts, a corporation is “deemed to 

reside in any district in that State within which its contacts would be sufficient to subject it to 

personal jurisdiction if that district were a separate state.” 28 U.S.C. 1391(d). Here, because ZTE 

1 WSOU recognizes that an Austin Court refused to apply § 1391(d) to § 1400(b) in Interactive 

Toybox. See Interactive Toybox, LLC v. Walt Disney Co., 1:17-CV-1137-RP, 2018 WL 5284625, 

at *2 (W.D. Tex. Oct. 24, 2018). There, the Court relied on § 1391(a) and concluded that Fourco 

provides “otherwise” by defining “resides” in Section 1400(b) for purposes of domestic 

corporations. Id. For reasons explained below, WSOU asks this Court to revisit that decision in 

Toybox. 

2 Wright and Miller suggests VE Holding was correctly decided. See § 3803, Law Applicable, 14D 

Fed. Prac. & Proc. Juris. § 3803 (4th ed.) 

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USA’s contacts with this District would be enough to subject it to personal jurisdiction in this 

District, it is deemed to reside here. 

a. Fourco and TC Heartland do not address new § 1391(d) and should not 

preclude this Court from applying § 1391(d). 

The Supreme Court’s decisions in Fourco and TC Heartland does not require a different 

conclusion. The Supreme Court has never determined whether a general venue statute that governs 

the “chapter” to which § 1400(b) belongs must be applied to § 1400(b). Instead, each time the 

Supreme Court has considered the effect of § 1391(c), it has interpreted a version of § 1391(c) that 

does not include the phrase “under this chapter.” See TC Heartland, 137 S. Ct. at 1521; Fourco 

Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222, 222, 77 S. Ct. 787, 788, 1 L. Ed. 2d 786 

(1957). 

i. Fourco does not address new language of § 1391(d). 

In Fourco, the Supreme Court held that 28 U.S.C. § 1400(b) was, at that time, the “sole 

and exclusive provision controlling venue in patent infringement actions, and that it [was] not to 

be supplemented by the provisions of 28 U.S.C. § 1391(c).” Fourco, 353 U.S. 222 (emphasis 

added). Section 1391(c) was, however, a significantly different statute when Fourco was decided 

in 1957. It stated: 

(c) A corporation may be sued in any judicial district in which it is incorporated or 

licensed to do business or is doing business, and such judicial district shall be 

regarded as the residence of such corporation for venue purposes. 

See id. Fourco did not and could not consider whether 28 USC § 1400(b) is supplemented by what 

is now 28 USC 1391(d). 

In 1988, Congress amended 1391(c) – the venue provision at issue in Fourco – to state:

(c) For purposes of venue under this chapter, a defendant that is a corporation 

shall be deemed to reside in any judicial district in which it is subject to personal 

jurisdiction at the time the action is commenced. In a State which has more than 

one judicial district and in which a defendant that is a corporation is subject to 

personal jurisdiction at the time an action is commenced, such corporation shall be 

deemed to reside in any district in that State within which its contacts would be 

sufficient to subject it to personal jurisdiction . . . 

28 U.S.C. § 1391 (1988) (emphasis added). 

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Two years later in VE Holding, the Federal Circuit considered whether “by [the 1988] 

amendment to § 1391(c) of chapter 87, Congress meant to apply [the new] definition [of ‘reside’] 

to the term as it is used in § 1400(b)[.]” VE Holding, 917 F.2d at 1575. The Federal Circuit 

recognized: 

Section 1391(c) as it was in Fourco is no longer. We now have exact and classic 

language of incorporation: For purposes of venue under this chapter[.] 

Id. at 1579 (emphasis added). It concluded that because 28 USC § 1400(b) and 28 USC § 1391(d) 

belong to the same “chapter” (chapter 28), the definition of “reside” provided in section 1391(c) 

“for purposes of venue under this chapter” must apply to section 1400(b). Id. at 1579 (noting it 

“would not be sensible to require Congress to say, ‘For purposes of this chapter, and we mean 

everything in this chapter . . .,’ in order to ensure that it has covered everything in a chapter of the 

statutes”) (emphasis in original). 

The Federal Circuit bolstered its decision by noting the following from a December 4, 1986 

memorandum to the subcommittee explaining the proposed revision: 

The [new] definition of corporate residence in § 1391(c) now provides a basis for 

applying the substantial number of venue statutes enacted as part of various 

substantive federal laws. As a matter of caution, the proposal limits its definition of 

residence to the venue provisions gathered in Chapter 87 of the Judicial Code, 28 

U.S.C. §§ 1391 through 1412. 

Id. at 1582 (emphasis in original). 

VE Holding refuted the argument that under Fourco, the only way for Congress to change 

venue in a patent infringement action is to change § 1400(b), noting that the Supreme Court had 

already found § 1400(b) was supplemented by former § 1391(d) in patent suits against foreign 

defendants: 

It is sometimes said that, since Fourco, the only way to change the way that venue 

in patent infringement actions is determined is to change § 1400(b). This argument 

fails, however, because the Supreme Court, in Brunette, 406 U.S. 706, 92 S.Ct. 

1936, refused to impose such a disablement upon the Congress’ ability to enact or 

amend legislation. The issue in Brunette was whether § 1400(b) governed venue in 

a patent suit involving a foreign corporation, or whether the general venue provision 

applicable to aliens, 28 U.S.C. § 1391(d), governed. The Court held § 1391(d) 

applied, and that § 1400(b) was supplemented by the provision governing suits 

against aliens. 

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Id. at 1579 (emphasis added).

ii. 2011 Amendments to § 1391 did not remove “under this chapter” 

from new § 1391(d). 

In 2011, Congress again amended § 1391 by striking subsections (a) through (d) and 

replacing them with new subsections (a) through (d). As part of the amendment, § 1391(c) (the 

section at issue in VE Holding) was moved to § 1391(d). That section still defines “residency of 

corporations in states with multiple districts” for “purposes of venue under [chapter 28].” 28 

U.S.C. § 1391(d). New § 1391(c) now defines residency for natural persons, “entities with the 

capacity to sue and be sued” in states that do not have multiple districts, and aliens. It does not 

contain the specific language of incorporation “under this chapter.” Instead, it states in relevant 

part:

(c) Residency.--For all venue purposes--

(1) a natural person . . . ; 

(2) an entity with the capacity to sue and be sued in its common name under 

applicable law, whether or not incorporated, shall be deemed to reside, if a 

defendant, in any judicial district in which such defendant is subject to the 

court’s personal jurisdiction with respect to the civil action in question and, if a 

plaintiff, only in the judicial district in which it maintains its principal place of 

business; and 

(3) a defendant not resident in the United States may be sued. . . 

28 U.S.C. § 1391. 

iii. TC Heartland does not address new § 1391(d). 

In 2017, the Supreme Court held that the definition of “reside” in new § 1391(c)(2) does 

not apply to § 1400(b). See TC Heartland, 137 S. Ct. at 1521. TC Heartland rejected the argument 

that the phrase “[f]or all venue purposes” in new § 1392(c)(2) required applying the section to 

§ 1400(b), pointing out that: (1) the statute at issue in Fourco included similar language (“for 

venue purposes”); and (2) new § 1391(a) contains a “savings clause” stating that § 1391 “shall 

govern the venue of all civil actions” “[e]xcept as otherwise provided by law.” Id. at 1516. TC 

Heartland further found that the absence of “under this chapter” in new § 1391(c) showed 

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Congress did not intend new § 1391(c) to define “reside” for § 1400(b). Id. at 1521 (“Congress 

deleted ‘under this chapter’ in 2011 and worded the current version of § 1391(c) almost identically 

to the original version of the statute.”).

The opposite is true for current § 1391(d), which does not use the general language “[f]or 

all venue purposes” and instead retains the specific, classic language of incorporation considered 

in VE Holding: “[f]or purposes of venue under this chapter[.]” 28 U.S.C. § 1391(d) (emphasis 

added).3 The broader phrase “[f]or all venue purposes” evaluated in TC Heartland does not have 

the same impact because it is general language that does not specifically apply to chapter 28.4 As 

Fourco recognized, “[s]pecific terms prevail over the general in the same or another statute which 

otherwise might be controlling.” Fourco, 353 U.S. at 228–29. 

Although TC Heartland contains certain broad statements about “§ 1391,” the discussion 

in TC Heartland is limited exclusively to the effect of the language in new § 1391(c)(2). Limiting 

its discussion to the language of § 1391(c)(2) was appropriate because the case on appeal in TC 

Heartland involved a suit brought in Delaware, a state with only one district. Therefore, only the 

new § 1391(c)(2) was properly at issue. There is no mention of the new §1391(d) in TC Heartland

and no discussion concerning whether the definition of residence in the new §1391(d) applies to 

§1400(b). 

Any notion that TC Heartland must apply to the whole of § 1391 is refuted by the Court’s 

refusal to address the new § 1391(c)(3). Just as § 1391(d) was not at issue in TC Heartland because 

the case on appeal was filed in a state with only one district, § 1391(c)(3) was not at issue because 

3 The drafters explained that § 1391(d) “is identical to that currently included in the second 

sentence of § 1391(c), with the addition of the language ‘for purposes of venue under this chapter’ 

[retained] from the first sentence of the current subsection.” H.R. REP. 112-10, 23, 2011 

U.S.C.C.A.N. 576, 580. 

4 Although this creates a separate analysis for venue under § 1391(d) and § 1391(c), courts have 

long acknowledged the venue analysis under the two different sections is different. See Loyalty 

Conversion Sys. Corp. v. Am. Airlines, Inc., 66 F. Supp. 3d 813, 814 (E.D. Tex. 2014) 

(acknowledging the different analysis to be applied to the different sections) (cleaned up). Further, 

Congress knew that by removing the phrase “under this chapter” from § 1391(c) and leaving it in 

§ 1391(d), it was maintaining a separate venue scheme under the two sections. 

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the defendant was a resident of the United States. The Court refused to address the new 

§ 1391(c)(3) or “express any opinion on this Court’s holding in Brunette” (which applied old § 

1391(d) in patent cases despite § 1400(b)). See TC Heartland at 7, n. 2. Any notion that TC 

Heartland applies to the whole of § 1391 is further refuted by In Re HTC Corp., in which the 

Federal Circuit refused to extend TC Heartland to § 1391(c)(3) and instead affirmed Brunette. In 

re HTC Corp., 889 F.3d 1349, 1356 (Fed. Cir. 2018), cert. denied sub nom. HTC Corp. v. 3G 

Licensing, S.A., 139 S. Ct. 1271, 203 L. Ed. 2d 279 (2019) (cleaned up) (emphasis in original) (“as 

the Court held in Brunette, § 1400(b) itself was not intended to apply to alien defendants”). 

iv. Only VE Holding addresses the relevant language at issue.

It is instructive to compare the statutory provisions at issue in Fourco, TC Heartland, and 

VE Holding. Of the three, only VE Holding, where certiorari was denied in 1991,

5 involves the 

language of incorporation at issue here.

Statutory language at issue in Fourco: (c) A corporation may be sued in any judicial 

district in which it is incorporated or licensed to do business or is doing business, 

and such judicial district shall be regarded as the residence of such corporation for 

venue purposes. 

Statutory language at issue in VE Holding: (c) For purposes of venue under this 

chapter, a defendant that is a corporation shall be deemed to reside in any judicial 

district in which it is subject to personal jurisdiction at the time the action is 

commenced . . . 

Statutory language at issue in TC Heartland: For all venue purposes -- (2) an entity 

with the capacity to sue and be sued in its common name under applicable 

law, whether or not incorporated, shall be deemed to reside, if a defendant, in any 

judicial district in which such defendant is subject to the court’s personal 

jurisdiction . . . 

Language it issue in this case: (d) Residency of corporations in States with 

multiple districts.--For purposes of venue under this chapter, in a State which 

has more than one judicial district and in which a defendant that is a corporation is 

subject to personal jurisdiction . . . 

WSOU does not challenge the correctness of applying Fourco and TC Heartland under the 

facts of those cases. In both cases, the statutory language did not include classic language of 

5 Johnson Gas Appliance Co. v. VE Holding Corp., 499 U.S. 922, 111 S. Ct. 1315, 113 L. Ed. 2d 

248 (1991) (denying certiorari). 

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incorporation “under this chapter.” WSOU does challenge the correctness of applying TC 

Heartland to hold that new § 1391(d), which expressly defines “reside” for “purposes of venue 

under [chapter 28]” somehow does not apply to § 1400(b) of chapter 28. Fourco and TC Heartland 

simply applied previous versions of the general venue statute and (so long as they are limited to 

the provisions they addressed) were correctly decided; however, neither case addressed the new 

statutory language under § 1391(d). 

v. WSOU requests that this Court revisit Toybox. 

WSOU asks this Court to revisit the Austin court’s decision in Toybox, where the court

relied on § 1391(a) and concluded that Fourco conflicts with the current version of § 1391(d) by 

defining “resides” in § 1400(b) for purposes of domestic corporations. Id. Fourco did not address 

whether new § 1391(d) is consistent with the definition of “resides” for purposes of § 1400(b). The 

legislative history for the 2011 amendments explains that “[n]ew paragraph 1391(a)(1) would 

follow current law in providing the general requirements for venue choices, but would not displace 

the special venue rules that govern under particular Federal statutes.” See H.R. REP. 112-10, 

18, 2011 U.S.C.C.A.N. 576, 580 (emphasis added). At the time this amendment was passed, VE 

Holding had been part of the “special venue rules that govern under particular Federal statutes” 

for over fifty years. Congress knew how §§ 1391 and 1400(b) were applied under VE Holding and 

retained the very language of incorporation VE Holding was based on. To conclude that Fourco 

provides a definition of “reside” that conflicts with the “special venue rules that govern under 

particular Federal statutes,” one must first disregard how §§ 1391 and 1400(b) were applied under 

VE Holding. This can be done only by assuming, from the outset, that TC Heartland abrogates VE 

Holding as it relates to § 1391(d). As explained above, TC Heartland did not address new 

§ 1391(d) because that question was not properly before the Court. 

The notion that Fourco is the sole and complete source of the definition for “reside” under 

the current version of § 1391(d) is belied by the Federal Circuit’s recent recognition that “Fourco 

. . . simply did not address the corporate venue at the district level of granularity.” In re 

BigCommerce, Inc., 890 F.3d 978, 985 (Fed. Cir. 2018) (emphasis added) (considering “Which 

Case 6:20-cv-00497-ADA Document 34 Filed 11/06/20 Page 8 of 14
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single judicial district in a multi-district state is the proper judicial district for purposes of venue 

under § 1400(b) in an infringement suit against a corporate defendant?”). In other words, Fourco 

did not consider the very question Congress answered by passing § 1391(d). 

Fourco was based on an entirely different version of § 1391 than the current version. The 

Austin Court’s reliance on Fourco’s interpretation of old statutory language to interpret new 

statutory language is incorrect.6 

vi. ZTE USA has sufficient contact with this District to subject it to 

personal jurisdiction, and therefore, venue.

ZTE USA’s contacts with this District are sufficient to subject ZTE USA to personal 

jurisdiction (and therefore venue) in this District at least because ZTE USA purposefully places 

accused products into the stream of commerce in this District. See Loveless Decl., Ex. Nos 1-10. 

A press release by ZTE USA states that ZTE had “invested more than $350 million in U.S. growth” 

as of 2013 and had partnered with the Houston Rockets to demonstrate its “commitment to building 

community relations throughout the state of Texas.” Loveless Decl., Ex. 9 (emphasis added). 

ZTE USA advertises itself as the “fourth-largest supplier of mobile devices in the U.S. overall.” 

Loveless Decl., Ex. Nos. 1, 3. On October 15, 2019, ZTE Corp. issued a release from Richardson, 

Texas, announcing that Blade Vantage 2 would be available in “Verizon stores across the U.S.” 

Loveless Decl., Ex. 10. ZTE has previously admitted that ZTE Corp. sells and ships 

telecommunication equipment to ZTE USA for distribution in the United States. Loveless Decl., 

Ex. 11 ¶18. In Slyce, this Court “applied personal jurisdiction against an out of state defendant that 

sold its software to a third-party, who then bundled the software into an app and sold it in the 

United States.” Match Group, LLC v. Bumble Trading Inc., W-18-CV-00080-ADA, 2020 WL 

1287958, at *4 (W.D. Tex. Mar. 18, 2020) (summarizing Slyce Acquisition Inc. v. Syte - Visual

Conception Ltd., No. W-19-CV-00257-ADA, 2019 WL 7598931 (W.D. Tex. Oct. 22, 2019), 

6 In contrast, TC Heartland relied on Fourco’s interpretation of the old version of § 1391(c) 

because the new version of § 1391(c)(2) at issue in TC Heartland tracks the relevant language 

addressed in Fourco. That is not the case for § 139(d), which retains the very language TC 

Heartland noted is absent from § 1391(c)(2).

Case 6:20-cv-00497-ADA Document 34 Filed 11/06/20 Page 9 of 14
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reconsideration denied, No. W-19-CV-00257-ADA, 2020 WL 278481 (W.D. Tex. Jan. 10, 

2020)).7 This is precisely how ZTE Corporation and ZTE USA operate. Loveless Decl., Ex. 11 ¶ 

18. 

B. The Court should allow venue discovery. 

If this Court is not inclined to find that ZTE USA resides in this District under §§ 1391(d) 

and 1400(b), WSOU requests that it allow discovery on ZTE USA’s allegation that it does not 

have a regularly established place of business in this District. ZTE USA admits it maintained a 

physical location at River Place Corporate Park, Building I, 6500 River Place Boulevard, Austin, 

Texas 78730 until July 31, 2015. Mtn., Wood Decl. ¶ 4. Publicly available information still 

indicates the presence of ZTE USA at the same location. Loveless Decl., Ex. 6. WSOU is entitled 

to discovery to test ZTE USA’s claim that it allegedly discontinued use of its Austin location in 

July 2015. 8

Publicly available information also indicates that ZTE TX has paid taxes to Travis County 

on personal property located at Plaza 7000, 7000 Mopac Expressway, 2nd Floor, Austin, Texas 

until August 31, 2018 since at least 2015 and continued to do so in 2020. WSOU is entitled to 

discovery on whether ZTE USA exercised any control over the “Mopac” location such that it is a 

regularly established place of business of ZTE USA. 

Further, ZTE USA’s website directs customers to purchase ZTE products from entities that 

maintain physical locations in this District, including AT&T and Cricket Wireless. WSOU is 

7 See also IDQ Operating, Inc. v. Aerospace Communications Holdings Co., Ltd., 

6:15-CV-781, 2016 WL 5349488, at *4 (E.D. Tex. June 10, 2016) (“a prima facie showing of 

purposeful entry into the Texas stream of commerce is established by showing that the defendant’s 

products were sold into a nationwide distribution network and that the products were available in 

Texas.”). 

8

 Travis County records do not appear to indicate that ZTE USA paid any personal property taxes 

associated with its Austin, Texas office during the time period ZTE USA admits it maintained the 

Austin office. Certainly, these taxes were paid under some name. This raises the question what 

name ZTE USA paid the taxes under and whether it continues to pay taxes under that name, after 

it allegedly discontinued use of the Austin, Texas office. Travis County records show that ZTE 

TX continues to pay taxes associated with its Austin, Texas office after it allegedly discontinued 

use of that office.

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entitled to know whether ZTE USA exercises control over any of these locations. Finally, 

comparably.com provides information on average “ZTE USA Sales Engineer” salaries in Waco, 

Texas. Loveless Decl., Ex. 12. WSOU should be allowed discovery on the existence of ZTE USA 

Sales Engineer positions in Waco, Texas.

Therefore, to the extent this Court does not consider ZTE USA a resident of this District 

under §§ 1391(d) and 1400(b), WSOU respectfully requests an opportunity to conduct venue 

discovery. 

C. ZTE USA’s motion to transfer under § 1404(a) should be denied. 

ZTE USA’s cursory discussion of the convenience factors9 under § 1404(a) fails to satisfy 

ZTE USA’s heavy burden of proving the NDTX is clearly more convenient than this District. See 

Mtn. at 8. 

i. WSOU is firmly rooted in Waco, Texas. 

WSOU is a Waco-based company that leverages its proprietary technology and 

management experience to help inventors and patent owners maximize the full potential of their 

patents. Hogan Decl. ¶ 1. Not only does WSOU operate out of downtown Waco (WSOU’s principal

place of business), less than two blocks from the Waco Division Courthouse, WSOU has 

established deep roots within the Waco community. Id. WSOU chose Waco as its headquarters 

because it was attracted to the burgeoning tech business in Waco, with Baylor acting as the anchor. 

Id. ¶ 3. WSOU’s sources of proof are kept in Waco. Id. Notably, WSOU has no offices, no 

documents, nor any employees in Austin. Id. WSOU does not have any offices, employees, or 

documents in the NDTX. 

9 See In re Volkswagen of America, Inc., 545 F.3d 304, 315 (5th Cir. 2008) (“The private interest 

factors are: (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 . . . The 

public interest factors are: (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.”) (internal citations and quotations omitted).

Case 6:20-cv-00497-ADA Document 34 Filed 11/06/20 Page 11 of 14
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WSOU’s Managing Director of Business Development, Matt Hogan, resides and works in 

Waco. Id. ¶2. Before working with WSOU, Mr. Hogan spent 7 years on Wall Street, and then was 

the founding CEO of a company that pioneered consumer data control. WSOU considered Mr. 

Hogan a good fit for its Headquarters in Waco in part because of his close ties to the Waco 

community, including family members who are Baylor alumni. 

WSOU has already engaged in hiring engineering students from Baylor University to 

support its business, and currently utilizes a local business to maintain its servers. Hogan Decl. 

¶¶ 4-5. Before COVID-19 delayed its efforts, WSOU was working to start a local tech meetup in 

Waco. With Startup Waco10 recently re-opening on a limited basis, WSOU has already resumed its 

collaborative efforts in the community. Id. WSOU is also working with the Baylor Law IP clinic to 

offer a quarterly webinar series for Baylor law students. Id. WSOU has had ongoing email

correspondence with Waco Ventures, a group that manages outside-facing dealings for the Baylor 

Transfer Technology Office. Id. ¶ 6. WSOU has job postings in Waco LPA, Startup Waco, and 

Waco TXjobs, and is in the search process to hire several Baylor students. Id. In establishing its 

Waco headquarters, WSOU has purchased services from several local Waco companies. Id. This 

includes, for example, an approximately $80,000 renovation project by a local construction 

company. Id. Clearly, WSOU is firmly rooted in Waco.

ii. ZTE USA fails to show the NDTX is clearly more convenient.

ZTE USA makes little effort to satisfy its burden of proving the NDTX is clearly more 

convenient than the WDTX. ZTE USA addresses factor 1 (ease of access to sources of proof) by 

claiming most of its evidence will be located either in its place of business in Richardson, Texas 

(where it claims its financial and marketing data are stored) or at the Upshaw PLLC law firm 

(where it claims its technical documents and source code are kept). See Mtn., Wood Decl. ¶ 10. 

10 Startup Waco is in downtown Waco and is a place for designers, developers, entrepreneurs, and 

others interested in the Waco startup community to connect. 

See https://members.startupwaco.com/. 

Case 6:20-cv-00497-ADA Document 34 Filed 11/06/20 Page 12 of 14
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WSOU’s documents, however, are kept in this District in WSOU’s office in Waco. Hogan Decl., 

¶7. These cases should not be transferred merely to shift inconveniences.

ZTE USA claims private factors 2 and 3 (compulsory process and witness convenience) 

favor transfer but points to a declaration that does not identify any witnesses (willing or otherwise) 

much less disclose their locations. See Mtn., Wood Decl. ¶10. In contrast, WSOU has at least one 

witness, Matt Hogan, who resides and works in Waco. Hogan Decl., ¶ 2. WSOU’s specifically 

identified witness who resides and works in Waco should be given more weight than the 

speculation that there might be a ZTE witness in the NDTX. Unwilling witnesses in the NDTX, if 

there are any, are likely to be within the subpoena power of this District. Further, these cases should 

not be transferred merely to shift inconveniences of witnesses. X Techs., Inc. v. Marvin Test Sys., 

Inc., CIV.A.SA-10-CV-319-X, 2010 WL 2303371, at *6 (W.D. Tex. June 7, 2010) (the movant 

must show “transfer would signify more than shifting inconvenience from one party to another”). 

ZTE USA does not claim any other factors, public or private, favor transfer. Its perfunctory 

motion to transfer under § 1404 fails to satisfy ZTE USA’s burden of proof and should be denied. 

CONCLUSION

For the reasons stated above, ZTE USA’s motion to dismiss or transfer should be denied. 

Case 6:20-cv-00497-ADA Document 34 Filed 11/06/20 Page 13 of 14
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Dated: November 6, 2020 Respectfully submitted,

/s/ Ryan Loveless 

James L. Etheridge

Texas State Bar No. 24059147 

Ryan S. Loveless 

Texas State Bar No. 24036997 

Brett A. Mangrum 

Texas State Bar No. 24065671 

Travis Lee Richins

Texas State Bar No. 24061296 

ETHERIDGE LAW GROUP, PLLC

2600 E. Southlake Blvd., Suite 120 / 324

Southlake, Texas 76092 

Telephone: (817) 470-7249 

Facsimile: (817) 887-5950 

Jim@EtheridgeLaw.com

Ryan@EtheridgeLaw.com

Brett@EtheridgeLaw.com

Travis@EtheridgeLaw.com 

Mark D. Siegmund 

State Bar No. 24117055 

mark@waltfairpllc.com 

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710 

Telephone: (254) 772-6400 

Facsimile: (254) 772-6432 

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on November 6, 2020, a true and correct copy of the foregoing document was 

served upon all counsel of record via email under this Court’s Local Rules.

/s/ Travis Richins 

Travis Richins

Case 6:20-cv-00497-ADA Document 34 Filed 11/06/20 Page 14 of 14