IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

GREATGIGZ SOLUTIONS, LLC,

PLAINTIFF,

vs.

LINKEDIN CORPORATION,

DEFENDANT.

Civil Action No. 6:20-cv-00545

JURY TRIAL DEMANDED

LINKEDIN CORPORATION’S MOTION TO DISMISS FOR IMPROPER VENUE,

OR IN THE ALTERNATIVE FOR TRANSFER TO THE

NORTHERN DISTRICT OF CALIFORNIA

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 1 of 21
-iTABLE OF CONTENTS

Page

I. Introduction .............................................................................................................................1

II. Factual Background.................................................................................................................2

A. GreatGigz and Its Complaint.............................................................................................2

B. LinkedIn Does Not Reside or Have Any Place of Business in W.D. Tex. .......................3

C. LinkedIn’s Headquarters and Relevant Operations are Located in N.D. Cal. ..................4

III. Legal Standard.........................................................................................................................5

A. Dismissal for Improper Venue ..........................................................................................5

B. The Patent Venue Statute ..................................................................................................5

IV. Argument.................................................................................................................................6

A. Venue is Improper in W.D. Tex. .......................................................................................7

1. LinkedIn Does Not “Reside” in W.D. Tex..................................................................7

2. LinkedIn Lacks a “Regular and Established Place of Business” Within W.D. 

Tex...............................................................................................................................7

a) GreatGigz’s Complaint Fails the Cray Test ..........................................................7

B. If the Court Declines to Dismiss the Case, Transfer to N.D. Cal. is Appropriate...........10

1. This Action “Could Have Been Brought” in N.D. Cal..............................................11

2. The Private Interest Factors Favor Transfer to N.D. Cal. .........................................11

a) Access to Sources of Proof..................................................................................12

b) Availability of Compulsory Process....................................................................12

c) Cost of Attendance for Willing Witnesses..........................................................13

3. The Public Interest Factors Favor Transfer to N.D. Cal............................................14

a) Local Interest.......................................................................................................14

b) Court Congestion.................................................................................................15

c) Familiarity with Applicable Law and Conflicts of Law......................................15

V. Conclusion.............................................................................................................................15

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 2 of 21
-iiTABLE OF AUTHORITIES

CASES

Ambraco, Inc. v. Bossclip B.V.,

570 F.3d 233 (5th Cir. 2009) .....................................................................................................5

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...................................................................................................................8

Assetworks, Inc. v. City of Cincinnati,

No. SA 02 CA 0351 FB, 2003 WL 25463096 (W.D. Tex. Mar. 31, 2003)...............................5

Bd. of Regents v. Boston Sci. Corp.,

No. 1:17-cv-1103, Dkt. 27 (W.D. Tex. Mar. 12, 2018), aff’d 936 F.3d 1365 

(Fed. Cir. 2019)......................................................................................................................1, 9

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...................................................................................................................8

Caldwell v. Palmetto State Sav. Bank of S.C.,

811 F. 2d 916 (5th Cir. 1987) ..................................................................................................10

Chicky Tackle, LLC v. Vallentine,

No. 6:18-CV-00063-RWS, 2018 WL 4286186 (E.D. Tex. Sept. 7, 2018)..............................10

CUPP Cybersecurity LLC v. Symantec Corp.,

No. 3:18-CV-01554-M, 2019 WL 1070869 (N.D. Tex. Jan. 16, 2019) ..............................9, 11

Experian Info. Sols., Inc. v. F.T.C.,

No. CIV. 3:00-CV-1631-H, 2001 WL 257834 (N.D. Tex. Mar. 8, 2001)...............................10

In re Adobe,

No. 20-126 (Fed. Cir. Jul. 28, 2020)................................................................................ passim

In re Cray Inc.,

871 F.3d 1355 (Fed. Cir. 2017)........................................................................................ passim

In re Dropbox, Inc., 

No. 2020-130 (Fed. Cir. July 28, 2020).............................................................................13, 15

In re Genentech, Inc.,

566 F.3d 1338 (Fed. Cir. 2009)..........................................................................................12, 13

In re Google LLC,

949 F.3d 1338 (Fed. Cir. 2020)..................................................................................................7

In re Hoffmann-La Roche Inc.,

587 F.3d 1333 (Fed. Cir. 2009)..........................................................................................12, 14

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 3 of 21
-iiiIn re TS Tech USA Corp.,

551 F.3d 1315 (Fed. Cir. 2008)................................................................................................11

In re Volkswagen AG,

371 F.3d 201 (5th Cir. 2004) ...................................................................................................11

In re ZTE (USA) Inc.,

890 F.3d 1008 (Fed. Cir. 2018)..............................................................................................1, 5

NetSoc, LLC v. LinkedIn Corp., 

No. 18-CV-12215-RA, 2020 WL 209864 (S.D.N.Y. Jan. 14, 2020) ......................................11

Optic153 LLC v. Thorlabs Inc.,

No. 6:19-CV-00667-ADA, 2020 WL 3403076 (W.D. Tex. June 19, 2020) .............................9

Pers. Audio, LLC v. Google, Inc.,

280 F. Supp. 3d 922 (E.D. Tex. 2017).....................................................................................10

TC Heartland LLC v. Kraft Foods Grp. Brands LLC,

137 S. Ct. 1514 (2017)...................................................................................................1, 5, 6, 7

Uniloc USA Inc. v. Box, Inc.,

No. 1:17-CV-754-LY, 2018 WL 2729202 (W.D. Tex. June 6, 2018).....................................12

VoIP-Pal.com, Inc. v. Twitter, Inc.,

No. 216CV02338RFBCWH, 2018 WL 3543031 (D. Nev. July 23, 2018)...............................9

STATUTES

28 U.S.C. § 1400(b).............................................................................................................1, 5, 6, 7

28 U.S.C. § 1404(a) ............................................................................................................... passim

28 U.S.C. § 1406(a) ............................................................................................................... passim

OTHER AUTHORITIES

Fed. R. Civ. P. 45(c)(1)(A) ............................................................................................................12

Fed. R. Civ. P. 12(b)(3)..........................................................................................................1, 5, 10

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 4 of 21
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I. INTRODUCTION

Defendant LinkedIn Corporation (“LinkedIn”) respectfully moves to dismiss Plaintiff 

GreatGigz Solutions, LLC’s (“GreatGigz”) Complaint pursuant to Rule 12(b)(3) of the Federal 

Rules of Civil Procedure. Venue is improper in this District under the patent venue statute, 28 

U.S.C. § 1400(b), because GreatGigz cannot meet its burden to establish that LinkedIn (1) 

“resides,” or (2) has “committed acts of infringement” and maintains a “regular and established 

place of business” within this District. TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 

S. Ct. 1514, 1521 (2017); In re ZTE (USA) Inc., 890 F.3d 1008, 1013-15 (Fed. Cir. 2018).

LinkedIn is incorporated in Delaware and does not have any place of business in this 

District—let alone a “regular and established place of business.” See TC Heartland LLC, 137 S. 

Ct. at 1521. GreatGigz’s threadbare allegations of venue are limited to a data center located 

outside of this District (Compl. ¶ 5) and a handful of LinkedIn employees who maintain remote 

home offices that LinkedIn does not own, lease, or control (id.), neither of which is sufficient to 

satisfy § 1400(b). See In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017); Bd. of Regents v. 

Boston Sci. Corp., No. 1:17-cv-1103, Dkt. 27 at 4 (W.D. Tex. Mar. 12, 2018), aff’d 936 F.3d 

1365 (Fed. Cir. 2019). Because GreatGigz has not met its burden to demonstrate proper venue, 

this case must be dismissed under Rule 12(b)(3).

In the alternative, if the Court elects not to dismiss this case, LinkedIn respectfully 

requests transfer per 28 U.S.C. § 1406(a) to the United States District Court for the Northern 

District of California (“N.D. Cal.”), where LinkedIn is headquartered and where its employees 

with relevant knowledge regarding the facts and circumstances of this case reside. The U.S. 

Court of Appeals for the Federal Circuit has made clear that, even where a defendant maintains 

more than one physical office within the Western District of Texas—in stark contrast with 

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LinkedIn’s zero offices—convenience factors weigh in favor of transfer when the defendant has

“identified a significant number of its own employees as potential witnesses” residing in a 

transferee venue, as is the case here. In re Adobe, No. 20-126, at 5 (Fed. Cir. Jul. 28, 2020).

II. FACTUAL BACKGROUND

A. GreatGigz and Its Complaint

GreatGigz is a Limited Liability Company registered in Florida. Compl. ¶ 1. It was 

formed less than three months ago, on May 26, 2020, by Raymond A. Joao, the sole inventor of 

the asserted patents and a resident of Yonkers, New York. See id. ¶ 11; Ex. A. Within weeks of

its formation, GreatGigz sued LinkedIn, alleging that aspects of LinkedIn’s website and 

infrastructure—specifically the “Jobs Tracker,” “Job Search Alerts,” and “Instant Job 

Notifications” features of the “LinkedIn Talent Site” and the “LinkedIn Talent Solutions Site” 

(the “Job Search Product”); and LinkedIn’s “ProFinder Site” (the “ProFinder Product”) 

(collectively the “Accused Products and Services”)—infringe U.S. Patents Nos. 6,662,194 (the 

“`194 patent”) and 7,490,086 (the “`086 patent”) (the “patents-in-suit”). See, e.g., Compl. ¶¶ 15, 

48, 53, 65; Exs. B, C. GreatGigz has no alleged or otherwise discernable ties to the Western 

District of Texas (“W.D. Tex.”).

GreatGigz acknowledges that LinkedIn is a Delaware corporation, but incorrectly asserts 

that LinkedIn “maintains a regular and established business presence in this District.” Id. ¶¶ 2, 8. 

The Complaint relies on the alleged home offices of 32 LinkedIn employees within this District,

claiming that they account for “nearly 10%” of LinkedIn’s “453” employees worldwide. Id. 

¶¶ 5-6 (citing a screenshot of what it alleges to be “LinkedIn’s corporate profile page on 

LinkedIn.com”). Yet, GreatGigz’s own citation states that LinkedIn has over 40 times that 

number of employees worldwide. Id. ¶ 6 (screenshot noting “See all 20,492 employees on 

LinkedIn”).

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The Complaint also alleges that “LinkedIn maintains substantial long-term data centers in 

the State of Texas [that] are under the direct control of LinkedIn” but cites only to LinkedIn’s 

Richardson, Texas and Hillsboro, Oregon data centers, both of which are outside of this District. 

See id. ¶¶ 5-7 (excerpting an article titled “LinkedIn Expands with Texas Data Center,” which 

reports on the 2013 opening of LinkedIn’s Dallas-area data center).

B. LinkedIn Does Not Reside or Have Any Place of Business in W.D. Tex.

LinkedIn is incorporated in Delaware, and has its principal place of business in 

Sunnyvale, California. Declaration of Susie Fregoso (“Fregoso Decl.”), ¶¶ 4, 8. LinkedIn does 

not have any offices in Texas—let alone in W.D. Tex.—and it does not otherwise own, operate, 

or control any data centers, warehouses, or real estate in this District. Id. ¶¶ 10-11. LinkedIn 

operates data centers in Richardson, Texas; Hillsboro, Oregon; Santa Clara, California; Ashburn, 

Virginia; and Sterling, Virginia—none of which is located within this District.

1

 See id. ¶

10. Although GreatGigz alleges that 32 LinkedIn employees reside within this District (Compl. 

¶ 5), that information is generated using self-reported information from individual LinkedIn 

users and is not an accurate reflection of LinkedIn’s Texas-based employees (Fregoso Decl. 

¶¶ 14-15). In truth, LinkedIn has only about 10 remote workers that reside within W.D. Tex., 

which amounts to less than a fraction of 1% of LinkedIn’s over 17,000 employee workforce. Id. 

¶ 13 (emphasis added). All of these employees maintain home offices and do not work in 

locations that LinkedIn owns, leases, or controls in any way. Id. ¶¶ 16-17. LinkedIn does not 

reimburse these workers’ housing costs, advertise their personal addresses, or require them to 

display, store, or distribute LinkedIn promotional materials, logos, signs, or inventory. Id. 

LinkedIn does not gain any benefit from having their remote employees reside in W.D. 

 

1 Richardson, Texas is located in the Northern District of Texas, not W.D. Tex. Ex. D.

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 7 of 21
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Tex. Id. They do not live in this District to serve existing customers or target potential 

customers in Texas. Id. ¶ 16. Instead, they choose to work remotely from this District for their 

own reasons—not because LinkedIn requires or even encourages it—and they can move to any 

LinkedIn office at any time without LinkedIn’s permission, as their employment is not dependent 

on their continued residence within this District. Id. ¶ 17. 

C. LinkedIn’s Headquarters and Relevant Operations are Located in N.D. Cal.

LinkedIn is, and always has been, headquartered in the San Francisco Bay Area. Fregoso

Decl. ¶ 5. The company was founded in Mountain View, California, within N.D. Cal., in 2003, 

and operates three large offices in Mountain View, Sunnyvale, and San Francisco. Id. ¶¶ 5, 8. In 

total, LinkedIn has approximately 11,210 employees, interns, and fixed-term contractors in ten

United States offices, among which, roughly 8,250 people work from LinkedIn’s San Francisco 

Bay Area offices. Id. ¶ 13. 

LinkedIn’s operations relevant to the design, development, marketing, and function of the 

Accused Products and Services primarily occur in its San Francisco Bay Area offices. Id. ¶ 20. 

Each of the Accused Products and Services is and was originally designed and developed, and 

continue to be maintained, by employees in LinkedIn’s San Francisco Bay Area offices. Id. 

Thus, the LinkedIn employees most knowledgeable about their design, development, marketing, 

and function of the Accused Products and Services—including the leads for the product, 

engineering, marketing, and financial analysis —are located in its San Francisco Bay Area 

offices. Id. ¶¶ 22, 25, 26. The same is true for LinkedIn employees most knowledgeable about 

finances, accounting, and revenue associated with the Accused Products and Services. Id. ¶¶ 23, 

25, 26. As a result, the overwhelming majority of LinkedIn’s relevant information, data, and 

documents, including the computer source code and technical documents for the Accused 

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 8 of 21
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Products and Services, are generated and maintained in its San Francisco Bay Area offices. Id. 

¶¶ 21, 29. 

In light of the COVID-19 pandemic, LinkedIn has adopted a corporate policy prohibiting 

all non-essential travel, and requiring LinkedIn’s prior written approval for any essential 

business travel. Id. at ¶ 28. Even if the effects of the pandemic recede and LinkedIn’s corporate 

travel reverts to normal between now and a trial in this case, LinkedIn would be greatly 

inconvenienced by having to attend trial outside N.D. Cal. Id. 

III. LEGAL STANDARD

A. Dismissal for Improper Venue

When a defendant moves to dismiss a case for improper venue under Federal Rule of 

Civil Procedure 12(b)(3), courts need not accept pleadings as true and may consider evidence 

beyond the facts alleged in the complaint. See Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 

(5th Cir. 2009); Assetworks, Inc. v. City of Cincinnati, No. SA 02 CA 0351 FB, 2003 WL 

25463096, at *11 (W.D. Tex. Mar. 31, 2003). In response to a 12(b)(3) challenge, the plaintiff 

bears the burden of establishing that venue is proper under § 1400(b). See In re ZTE (USA) Inc., 

890 F.3d at 1013. If a case is filed in an improper venue, the district court “shall dismiss, or if it 

be in the interest of justice, transfer such case to any district or division in which it could have 

been brought.” 28 U.S.C. § 1406(a).

B. The Patent Venue Statute

Venue in patent cases is exclusively governed by 28 U.S.C. § 1400(b). See TC Heartland 

LLC, 137 S. Ct. at 1517. Section 1400(b) is clear: Venue is proper only where (1) “the defendant 

resides” or (2) “the defendant has committed acts of infringement and has a regular and 

established place of business.” 28 U.S.C. § 1400(b). When a defendant is not sued in its state of 

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 9 of 21
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incorporation—as is the case here—TC Heartland mandates showing both “committed acts of 

infringement” and “a regular and established place of business” for proper venue. TC Heartland, 

137 S. Ct. at 1518. To determine what constitutes “a regular and established place of business,” 

the Federal Circuit recognizes three “Cray” requirements: “(1) there must be a physical place in 

the district; (2) it must be a regular and established place of business; and (3) it must be the place 

of the defendant.” In re Cray, 871 F.3d at 1360 (emphasis added). 

Regarding the third Cray element, a place is “of the defendant” only where the defendant 

“establish[es] or ratif[ies]” it. In re Cray, 871 F.3d at 1363-64. “It is not enough that [an]

employee does so on his or her own.” To assist courts in this analysis, the Federal Circuit has 

provided relevant considerations, including: “whether the defendant owns or leases the place, or 

exercises other attributes of possession or control over the place”; “whether the defendant 

conditioned employment on an employee’s continued residence in the district or the storing of 

materials at a place in the district so that they can be distributed or sold from that place”; whether 

“an employee can move his or home out of the district at his or her own instigation, without the 

approval of the defendant”; “whether the defendant lists the alleged place of business on a 

website, or in a telephone or other directory; or places its name on a sign associated with or on 

the building itself”; and “the nature and activity of the alleged place of business of the defendant 

in comparison with that of other places of business of the defendant in other venues.” Id.

IV. ARGUMENT

LinkedIn neither resides nor maintains a “regular and established place of business” in 

W.D. Tex. Because GreatGigz has not and cannot meet either statutory requirement, this case 

should be dismissed for improper venue.

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A. Venue is Improper in W.D. Tex.

1. LinkedIn Does Not “Reside” in W.D. Tex.

The first prong of § 1400(b) is easily dispensed with: LinkedIn does not “reside” in this 

District, because LinkedIn is incorporated in Delaware. See Compl. ¶ 2; TC Heartland, 137 S. 

Ct. at 1521.

2. LinkedIn Lacks a “Regular and Established Place of Business”

Within W.D. Tex.

a) GreatGigz’s Complaint Fails the Cray Test

LinkedIn does not have, and GreatGigz cannot show, any “regular and established place 

of business” in this District that is sufficient to establish venue under § 1400(b). See In re Cray, 

871 F.3d at 1360. Specifically, LinkedIn does not maintain a single physical place of business in 

this District, much less a “regular and established” one. Fregoso Decl. ¶ 11.

Under the first Cray element, LinkedIn lacks a “physical place” in this District. See In re 

Cray, 871 F.3d at 1360. LinkedIn does not own or lease any office, warehouse, data center, or 

other real estate within W.D. Tex. See Fregoso Decl. ¶¶ 10-11. Although the Complaint 

references LinkedIn’s Richardson, Texas data center, that fact is of no consequence, because it is 

located in the Northern District of Texas. See id. ¶ 10; Ex. D. To the extent GreatGigz relies on 

web services that LinkedIn provides to this District’s consumers via this data center (See Compl. 

¶ 7), that would be improper because the mere act of maintaining a website or virtual space that 

is accessible within a district, or facilitating electronic communications with persons in a district, 

does not meet Cray’s test for a “physical place” and does not give rise to venue. In re Cray, 871 

F.3d at 1362 (explaining that “a virtual space or [] electronic communications from one person to 

another” is not a physical place). 

LinkedIn does not have any place of business in this District, let alone a “regular and 

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 11 of 21
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established” place of business and accordingly cannot satisfy the second Cray element, either. 

See In re Google LLC, 949 F.3d 1338, 1344 (Fed. Cir. 2020). Given the Federal Circuit’s 

pronouncement in Cray that “[i]f any statutory requirement is not satisfied, venue is improper,” 

this alone is sufficient to end the venue inquiry. 871 F.3d at 1360.

Even if GreatGigz could demonstrate the existence of a regular and established physical 

place of business, which it cannot, GreatGigz’s remaining venue-related allegations fail under 

the third Cray element. Other than its reference to LinkedIn’s Richardson, Texas data center,2

GreatGigz relies entirely on the alleged home offices of 32 LinkedIn employees within this 

District, claiming that these employees account for “nearly 10%” of LinkedIn’s “453” employees 

worldwide. Id. ¶¶ 5-6 (citing to a screenshot of what it alleges to be “LinkedIn’s corporate 

profile page on LinkedIn.com”). This allegation is blatantly incorrect. GreatGigz’s own citation 

contradicts its fanciful assertion: “See all 20,492 employees on LinkedIn.” See id. A basic 

search of publicly available information confirms that LinkedIn employs “more than 16,000

full-time employees” worldwide. See Exs. E, F (emphasis added). As is apparent from its own 

screenshot, GreatGigz obtained this incorrect number after filtering the results by entering the 

term “Texas” into the box labeled “Search employees by title, keyword or school”—notably, 

they did not search employees by “location.” Compl. ¶ 6. This blunder should have been 

self-evident, as the screenshot (cropped in the Complaint) included any employees with “Texas” 

in their profile (e.g., the University of Texas as a school listing), not merely employees located in 

Texas. Id. The facially implausible nature of these conclusions disentitles GreatGigz’s factual 

allegations to any assumption of truth and fails Rule 8’s pleading requirement as a matter of law. 

 

2 As noted, GreatGigz’s Complaint also mentions the LinkedIn data center located in Hillsboro, 

Oregon, which is immaterial for purposes of supporting venue in this District. See Compl. ¶ 6.

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 12 of 21
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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 

(2007).

In reality, LinkedIn employs approximately 17,010 individuals worldwide, and roughly

10 of them reside in W.D. Tex., which amounts to less than a fraction of 1% of LinkedIn’s total 

number of employees. Fregoso Decl. ¶ 13. Furthermore, each and every one of the controlling

Cray factors relating to remote employees weighs against a finding that LinkedIn operates a 

regular and established place of business out of its employees’ homes. These individuals, which 

include one intern, work remotely from their homes, and LinkedIn does not hold them out as its 

own places of business. Id. ¶ 16. LinkedIn does not advertise the addresses of these homes on 

the Internet or its promotional materials, or label these homes with LinkedIn signage. See id. 

Nor does LinkedIn require that its personnel who live in W.D. Tex. serve existing or potential 

customers here, store LinkedIn inventory, or distribute LinkedIn’s advertising materials. See id. 

¶¶ 16-17. LinkedIn does not own or lease these remote homes or reimburse any of the 

employees’ housing costs. See id. ¶ 17. LinkedIn does not gain any benefit from having these 

individuals reside within this District, and they are not required to obtain prior permission from 

LinkedIn if they wish to move to one of LinkedIn’s several U.S. offices. Id. 

In a near-identical scenario, this Court’s sister Division applied the Cray test and found 

that a defendant’s 46 remote employees—more than three times at issue here—were not 

sufficient to confer venue in this District. See Bd. of Regents, No. 1:17-cv-1103, Dkt. 27 at 3-4. 

This Court has also applied the Cray test to dismiss an action for improper venue where, as here,

the defendant “[did] not have any employees, lease any property, or have an office or other place 

of business” in the District. Optic153 LLC v. Thorlabs Inc., No. 6:19-CV-00667-ADA, 2020 

WL 3403076, at *2 (W.D. Tex. June 19, 2020).

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Other district courts have arrived at a similar result. See, e.g., CUPP Cybersecurity LLC 

v. Symantec Corp., No. 3:18-CV-01554-M, 2019 WL 1070869, at *4 (N.D. Tex. Jan. 16, 2019);

VoIP-Pal.com, Inc. v. Twitter, Inc., No. 216CV02338RFBCWH, 2018 WL 3543031, at *4 (D. 

Nev. July 23, 2018) (“there is no evidence that [defendant’s remote software engineer’s] work is 

consumer-facing”); Pers. Audio, LLC v. Google, Inc., 280 F. Supp. 3d 922, 936 (E.D. Tex. 2017) 

(remote employees’ homes are not “under the control of Google or were ever held out as 

Google’s places of business”). 

In sum, it is insufficient to establish venue based on the presence of LinkedIn’s remote 

employees within this District. Just as in Cray, “[t]he facts presented [here] cannot support a 

finding that [a remote employee’s] home was a regular and established place of business.” 871 

F.3d at 1364-65 (emphasis in original). GreatGigz simply cannot equate these personal homes to

LinkedIn’s regular and established place of business. The same result as in Cray should follow 

here. Dismissal is particularly appropriate here because GreatGigz does not face “a statute of 

limitations problem or other procedural bar” which could hinder its ability to refile this action. 

Experian Info. Sols., Inc. v. F.T.C., No. CIV. 3:00-CV-1631-H, 2001 WL 257834, at *4 (N.D. 

Tex. Mar. 8, 2001); Caldwell v. Palmetto State Sav. Bank of S.C., 811 F. 2d 916, 919 (5th Cir. 

1987); Chicky Tackle, LLC v. Vallentine, No. 6:18-CV-00063-RWS, 2018 WL 4286186, at *6 

(E.D. Tex. Sept. 7, 2018). In fact, Mr. Joao waited more than ten years after the issuance of the 

patents-in-suit to incorporate a litigation entity and initiate a patent suit against LinkedIn. See 

Exs. A, B, C. The Court should grant LinkedIn’s Rule 12(b)(3) Motion.

B. If the Court Declines to Dismiss the Case, Transfer to N.D. Cal. is 

Appropriate

If this Court finds that the interest of justice is better served by transfer instead of 

dismissal, it may transfer this action to any district where the action “could have been brought.” 

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28 U.S.C. § 1406(a). District courts throughout this Circuit apply the § 1404(a) public and 

private convenience factors3in assessing transfer under §1406(a)—with the exception that 

LinkedIn’s proposed venue need not be “clearly” more convenient. See In re Adobe, No. 

20-126, at 4; CUPP Cybersecurity, 2019 WL 1070869, at *6-7.4 Here, the Court should transfer 

this case to N.D. Cal., where LinkedIn is headquartered and maintains its principal place of 

business, and where the overwhelming majority of relevant witnesses and documents reside.

1. This Action “Could Have Been Brought” in N.D. Cal.

Under §1406(a), transfer is limited to a transferee court where the action could have been 

brought in the first instance. 28 U.S.C. § 1406(a). On this threshold question, LinkedIn is 

indisputably amenable to suit—i.e. personal jurisdiction, subject matter jurisdiction, and proper 

patent venue—in N.D. Cal., where it is headquartered and maintains its principal place of 

business. See, e.g., NetSoc, LLC v. LinkedIn Corp., No. 18-CV-12215 (RA), 2020 WL 209864, 

at *7 (S.D.N.Y. Jan. 14, 2020) (holding that transfer to N.D. Cal. “would be convenient and 

just”); Fregoso Decl. ¶ 8. As such, N.D. Cal. is a proper venue. See 28 U.S.C. §1406(a). 

2. The Private Interest Factors Favor Transfer to N.D. Cal.

All private interest factors favor transfer to N.D. Cal., and the Federal Circuit recently 

 

3 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.” See In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 

2004). 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 or the application of foreign law.” Id.

4

“Fifth Circuit precedent clearly forbids treating the plaintiff’s choice of venue as a distinct 

factor in the § 1404(a) analysis.” In re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 

2008) (citing In re Volkswagen of Am., 545 F.3d 301, 314 n.10 (5th Cir. 2008)). Of course, 

plaintiff’s choice of venue is moot where that choice is plainly improper under Section 1400(b).

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instructed transfer on facts similar to these. In re Adobe, No. 20-126.

a) Access to Sources of Proof

The Federal Circuit has stated that “[i]n 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.” In re Genentech, 

Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009) (citation omitted). LinkedIn, as the accused infringer, 

generates and maintains the bulk of its relevant documents relating to the design, development, 

and maintenance of the Accused Products and Services in its Sunnyvale, Mountain View, and 

San Francisco offices, and maintains none in W.D. Tex. Fregoso Decl. ¶¶ 21, 29. This includes 

the majority of hard-copy documents relevant to the design, development, marketing, and 

function of the Accused Products and Services, as well as source code, which LinkedIn makes 

available only on a need-to-know basis. Id.; see Uniloc USA Inc. v. Box, Inc., No. 1:17-CV-754-

LY, 2018 WL 2729202, at *3 (W.D. Tex. June 6, 2018) (granting transfer where, inter alia, all

“relevant hard-copy documents are stored in Northern California”). This factor supports transfer 

to N.D. Cal.

b) Availability of Compulsory Process

This factor weighs in favor of transfer when “a transferee venue has absolute subpoena 

power” over a substantial number of witnesses. In re Hoffmann-La Roche Inc., 587 F.3d 1333, 

1338 (Fed. Cir. 2009) (citing Genentech, 566 F.3d at 1345). A district court may only compel a 

witness to attend a trial, hearing, or deposition “within 100 miles of where the person resides, is 

employed, or regularly transacts business.” Fed. R. Civ. P. 45(c)(1)(A). Importantly, LinkedIn 

is unaware of—and GreatGigz has not identified—a single third party witness in or anywhere 

near W.D. Tex. Rather, to defend against GreatGigz’s claims of infringement, LinkedIn may 

rely on material non-party witnesses, including former LinkedIn employees knowledgeable 

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about the Accused Products and Services, who LinkedIn believes are most likely to still reside 

and work in N.D. Cal. See Fregoso Decl. ¶ 27. Since these individuals may not be willing to 

testify voluntarily, transferring this case to N.D. Cal. will allow LinkedIn to compel their

personal attendance.

c) Cost of Attendance for Willing Witnesses

The convenience of witnesses attending trial “is probably the single most important factor 

in [a] transfer analysis.” Genentech, 566 F.3d at 1345. The Federal Circuit recently highlighted 

this point, holding that transfer was appropriate even where a defendant maintained more than 

one physical office within W.D. Tex.—in stark contrast with LinkedIn’s zero offices—since the 

defendant had “identified a significant number of its own employees as potential witnesses who 

reside in the Northern District of California.” In re Adobe, No. 20-126, at 5; In re Dropbox, Inc., 

No. 2020-130, at 2 (Fed. Cir. July 28, 2020) (suggesting this Court reconsider its transfer denial

in light of the Federal Circuit’s intervening decision in Adobe). 

Here, witnesses with most knowledge of the Accused Products and Services are LinkedIn 

employees that work from LinkedIn’s San Francisco Bay Area offices. Of LinkedIn’s 11,210

United States employees, interns, and fixed-term contractors, roughly 8,250 work out of its San 

Francisco Bay Area offices. Fregoso Decl. ¶ 18. The employees who are most knowledgeable 

regarding the design, development, marketing, and function of the Accused Products and 

Services reside within N.D. Cal., including product managers, product marketing managers, 

engineers, designers, and staff. Id. ¶ 22. The employees most knowledgeable about the business 

and financial aspects of the Accused Products and Services also reside in N.D. Cal. Id. ¶ 23. 

The majority of executive and management level personnel overseeing key decisions concerning 

the design, structure, and content of the relevant features reside in N.D. Cal. Id. ¶ 24. While 

early in the case, and reserving the ability to modify, LinkedIn has identified seven individuals 

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most knowledgeable about the Accused Products and Services, all of which work from

LinkedIn’s San Francisco Bay Area offices. Id. ¶¶ 25, 26.

Conversely, GreatGigz has not identified any potential witnesses with relevant 

knowledge residing within this District. GreatGigz is registered in Florida and the sole inventor 

of the patents-in-suit resides in New York, not Texas. Ex. A. The Accused Products and 

Services were neither developed nor designed, and are not maintained, in this District. See 

Fregoso Decl. ¶ 29. As a result, LinkedIn would not call any of its remote workers residing in 

the District as a witness at trial. 

3. The Public Interest Factors Favor Transfer to N.D. Cal.

The public interest factors also strongly weigh in favor of transfer to N.D. Cal.

a) Local Interest

Local interests are most salient when a district is home to a party, especially the 

defendant, since an infringement suit “calls into question the work and reputation” of those who 

“presumably conduct business in that community.” In re Hoffmann-La Roche, 587 F.3d at 1336. 

Since LinkedIn’s founding in 2003, its headquarters have always been located in N.D. Cal., 

where it currently employs thousands of individuals across its offices in Sunnyvale, Mountain 

View, and San Francisco. Fregoso Decl. ¶¶ 5, 18. The Accused Products and Services were 

designed and developed at these offices within N.D. Cal, and its relevant employees are also 

residents of that district. Id. ¶¶ 20-26. Because this case involves adjudicating the alleged acts 

and consequences of its own residents, N.D. Cal. has a strong local interest in hearing this case.

On the other hand, GreatGigz has no connection to this District as it is registered in 

Florida and the sole inventor of the patents-in-suit resides in New York. Ex. A. As such, this is 

not a case about whether GreatGigz should have the ability to bring a lawsuit in its home forum. 

Thus, this factor favors transfer to N.D. Cal.

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b) Court Congestion

Since venue is improper in GreatGigz’s chosen forum, W.D. Tex., the Federal Circuit has 

instructed that the standard cross-district time-to-trial comparison is inapplicable here. See In re 

Adobe, No. 20-126, at 6. Moreover, “the court’s general ability to set a schedule” more quickly 

than other courts does not speak to “whether there is an appreciable difference in docket 

congestion between the two forums.” Id.; see also In re Dropbox, Inc., No. 2020-130, at 2. That 

said, this District has experienced a recent deluge of new patent cases—a total of 529 complaints

since January 2020—while N.D. Cal. has seen only 161 new patent cases in the same period. 

See Exs. G, H. 

The other judicial district where this case “could have been brought” as to LinkedIn is the 

District of Delaware, LinkedIn’s state of incorporation. See 28 U.S.C. § 1406(a); Fregoso Decl. 

¶ 4. Average time-to-trial statistics indicate that cases reach trial approximately four or five 

months sooner in N.D. Cal. as compared to Delaware. See Exs. J, K. Additionally, the District 

of Delaware has seen 446 new patent cases filed this year, compared to N.D. Cal.’s 161 new 

patent cases. See Exs. G, I. This factor thus weighs in favor of transfer to N.D. Cal.

c) Familiarity with Applicable Law and Conflicts of Law

The last of the public interest factors are neutral, as LinkedIn is not aware of any 

applicable conflicts of law, and all federal courts are equally capable of applying federal patent 

law—particularly since N.D. Cal. is no stranger to patent litigation.

V. CONCLUSION

For the foregoing reasons, LinkedIn respectfully requests that the Court grant its Motion 

to Dismiss, or in the alternative, transfer to N.D. Cal.

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DATED: August 14, 2020 Respectfully submitted,

/s/ Katherine A. Helm

Katherine A. Helm

Appearing Pro Hac Vice

khelm@dechert.com

Dechert LLP

Three Bryant Park

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3559

Nisha Patel

Appearing Pro Hac Vice

nisha.patel@dechert.com

Dechert LLP

3000 El Camino Real, Suite 650

Palo Alto, CA 94306

(650) 813-4834

Timothy Dewberry

Texas Bar No. 24090074

timothy.dewberry@dechert.com

Dechert LLP

515 Congress Avenue, Suite 1400

Austin, TX 78701

(512) 394-3029

Attorneys for Defendant

LinkedIn Corporation

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s 

CM/ECF system per Local Rule CV-5(b)(1) on this 14 day of August, 2020. All other counsel 

not deemed to have consented to service in such manner will be served via first class mail.

/s/ Katherine A. Helm

Katherine A. Helm

Case 6:20-cv-00545-ADA Document 12 Filed 08/14/20 Page 21 of 21