IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

THE DAILY WIRE, LLC et al., 

 Plaintiffs 

v. 

UNITED STATES DEPARTMENT 

OF STATE et al., 

 Defendants. 

 Civil Action No. 6:23-cv-00609 (JDK) 

DEFENDANTS’ REPLY IN SUPPORT OF 

MOTION TO TRANSFER VENUE 

BRIAN M. BOYNTON 

 Principal Deputy Assistant Attorney General 

 JAMES J. GILLIGAN 

Special Litigation Counsel 

Federal Programs Branch 

JOSHUA E. GARDNER 

Special Counsel 

Federal Programs Branch 

DOROTHY M. CANEVARI 

CRISTEN C. HANDLEY 

 CODY T. KNAPP 

ARJUN MODY 

 Trial Attorneys 

 U.S. Department of Justice 

 Civil Division, Federal Programs Branch 

 1100 L Street NW 

 Washington, D.C. 20005 

 Tel: (202) 305-2677 

 Email: Cristen.Handley@usdoj.gov 

 Counsel for Defendants 

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TABLE OF CONTENTS 

INTRODUCTION ........................................................................................................................................... 1 

ARGUMENT ..................................................................................................................................................... 1 

I. The Eastern District of Texas is an improper venue for this case .................................. 1 

III. This case should be transferred to the District of Columbia. .......................................... 5 

CONCLUSION ................................................................................................................................................. 5 

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TABLE OF AUTHORITIES

Cases

Amr v. Virginia, 

2015 WL 236822 (D.C. Cir. 2015) .............................................................................................................. 4 

Associated Gen. Contractors of Am., Inc. v. Fed. Acquisition Regul. Council, 

2024 WL 1078260 (W.D. La. Mar. 12, 2024) ....................................................................................... 1, 4 

Atlanta & F.R. Co. v. W. Ry. Co. of Alabama, 

50 F. 790 (5th Cir. 1892) .............................................................................................................................. 3 

California v. Azar, 

911 F.3d 558 (9th Cir. 2018) ........................................................................................................................ 3 

Career Colls. & Schs. of Tex. v. Dep’t of Educ., 

2023 WL 2975164 (N.D. Tex. Apr. 17, 2023) ........................................................................................... 4 

Dobbs v. Jackson Women’s Health Org., 

597 U.S. 215 (2022) ....................................................................................................................................... 2 

Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 

536 F.3d 439 (5th Cir. 2008) ................................................................................................................... 2, 4 

Guajardo v. State Bar of Tex., 

803 F. App’x 750 (5th Cir. 2020) ................................................................................................................ 4 

In re Horseshoe Ent., 

337 F.3d 429 (5th Cir. 2003) ....................................................................................................................... 5 

Leroy v. Great W. United Corp., 

443 U.S. 173 (1979) ....................................................................................................................................... 4 

McNeil v. United States, 

508 U.S. 106 (1993) ....................................................................................................................................... 4 

Miller v. Albright, 

523 U.S. 420 (1998) ....................................................................................................................................... 2 

Nat’l Infusion Ctr. Ass’n v. Becerra, 

2024 WL 561860 (W.D. Tex. Feb. 12, 2024) ............................................................................................ 1 

Netchoice LLC v. Paxton, 

573 F. Supp. 3d 1092 (W.D. Tex. 2021), 

vacated and remanded sub nom., 49 F.4th 439 (5th Cir. 2022) ....................................................................... 2 

Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 

547 U.S. 47 (2006) ......................................................................................................................................... 2 

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Sigoloff v. Austin, 

2023 WL 2142982 (N.D. Tex. Feb. 21, 2023) ........................................................................................... 5 

Statutes 

2 U.S.C. § 1602 ................................................................................................................................................... 3 

11 U.S.C. § 101 ................................................................................................................................................... 3 

18 U.S.C. § 2711 ................................................................................................................................................. 3 

28 U.S.C. § 1391 ................................................................................................................................................. 3 

Tex. Bus. & Com. Code § 120.053 .................................................................................................................. 2 

Other Authorities 

Entity, Black’s Law Dictionary (11th ed. 2019) ............................................................................................. 3 

State, Black’s Law Dictionary (11th ed. 2019) ............................................................................................... 3 

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INTRODUCTION 

The complaint cites two bases for filing suit in this District: that Plaintiff the State of Texas 

resides here, and that a substantial part of the events giving rise to Texas’s claims occurred here. See

Compl. ¶ 9. As Defendants have shown, however, venue cannot be predicated on Texas’s claims 

because Texas lacks standing, and even if that were not so, Texas does not reside in this District for 

venue purposes, and no relevant events occurred here. In response, Plaintiffs assert new venue 

arguments that do not appear in their complaint—namely, that venue is proper based on the Media 

Plaintiffs’ claims. Plaintiffs cannot establish venue through unpled theories. But even if they could, 

the same basic venue problems persist, and this case should thus be transferred. 

ARGUMENT 

I. The Eastern District of Texas is an improper venue for this case. 

Since Defendants filed their motion to transfer, at least two additional courts in this Circuit 

have found improper venue on the same theory presented here: when the court lacks subject-matter 

jurisdiction over a plaintiff’s claims, venue cannot be premised on that plaintiff’s claims. See Associated 

Gen. Ctrs. of Am. v. Fed. Acquis. Regul. Cncl., 2024 WL 1078260, at *7 (W.D. La. Mar. 12, 2024) (“AGC”) 

(collecting cases); Nat’l Infusion Ctr. v. Becerra, 2024 WL 561860, at *5 (W.D. Tex. Feb. 12, 2024) 

(“NICA”). Attempting to resist this straightforward principle, Plaintiffs maintain that Texas has 

standing and resides in this District, though they largely abandon their allegation that events giving 

rise to Texas’s claims occurred here, mentioning it only once in a footnote. See Opp. to Mot. to 

Transfer, at 9 n.6 (“Opp.”). As a fallback, Plaintiffs assert an entirely new venue basis relying on the 

Media Plaintiffs’ claims. These efforts fail at every step. 

First, Texas lacks standing. As shown in Defendants’ motion to transfer and motion to 

dismiss, Texas’s injury theory fails on its face because it does not explain how, even accepting the 

allegations as true, any of Defendants’ alleged activities prevent any social media company from 

complying with H.B. 20 or otherwise interfere with Texas’s enforcement of H.B. 20. See Mot. to 

Transfer at 6-9; Mot. to Dismiss at 15-18. That is, if H.B. 20 prohibits social media companies from 

using certain technologies in certain ways, the companies can simply choose not to use those 

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technologies as such. See Mot. to Dismiss at 16. Moreover, Defendants’ evidence supporting their 

motion to dismiss—which this Court should consider in determining venue, see, e.g., Ginter ex rel. Ballard 

v. Belcher, Prendergast & Laporte, 536 F.3d 439, 449 (5th Cir. 2008)—demonstrates that there is no 

relationship between Defendants’ activities and the technologies that Texas says social media 

companies use in violation of H.B. 20. See Mot. to Dismiss at 20-24. 

 All of this assumes H.B. 20 is currently enforceable in the first instance, but it is not. See Mot. 

to Transfer at 5-6. Nevertheless, citing Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), Texas 

insists that this Court must “presume the validity of H.B. 20.” Opp. at 4. Dobbs did not concern a 

statute that had been preliminarily enjoined, and thus it offers no basis to presume H.B. 20’s validity. 

Nor does any other authority. Texas also asserts that “parts of H.B. 20 remain law.” Id. In support, 

Texas points to a “transparency” provision in H.B. 20 requiring social media companies to report 

instances of content moderation on their platforms. See id. at 5 (citing Tex. Bus. & Com. Code § 

120.053). Even assuming that provision is in effect,1 Texas again does not explain how Defendants’ 

purported actions prevent a social media company from complying with that provision. 

 For these reasons and those in Defendants’ motion to transfer and motion to dismiss, Texas’s 

claims cannot survive Article III scrutiny. And, once the Court determines that it lacks jurisdiction 

over Texas’s claims—and indeed over the case entirely—there is no basis for venue in this Court. 2 

1 This is doubtful. The “transparency” provision is part of Section 2 of H.B. 20. See Tex. Bus. & Com. Code 

§ 120.053. The Western District of Texas held that Section 2 is unconstitutional and, because it is “replete with 

constitutional defects, . . . [t]here is nothing that could be severed and survive.” See NetChoice LLC v. Paxton, 

573 F. Supp. 3d 1092, 1116 (W.D. Tex. 2021) (citation omitted), vacated and remanded sub nom., 49 F.4th 439 (5th 

Cir. 2022). Nothing in the Fifth Circuit’s or the Supreme Court’s subsequent rulings indicates that the 

“transparency” provision remains operative. 

2 Plaintiffs state that “Defendants do not challenge the Media Plaintiffs’ standing,” Opp. at 3 n.2, but 

Defendants have challenged Media Plaintiffs’ (and Texas’s) standing in their motion to dismiss and in 

opposition to Plaintiffs’ motions for preliminary injunction and expedited discovery. See ECF Nos. 33, 32, 20 

(respectively). As explained, because the complaint bases venue only on Texas, Media Plaintiffs’ standing is 

irrelevant to the venue question presented here. See Mot. to Transfer at 9. Additionally, Plaintiffs state that “if 

the Media Plaintiffs have standing, then Texas also has standing,” Opp. at 3 n.2, and that “if the Court concludes 

that Texas lacks standing, this case may still proceed in this district based on Media Plaintiffs’ standing,” id. at 

10. While the presence of one plaintiff with standing may avoid the need to determine other plaintiffs’ standing, 

see Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006), it does not mean that the other 

plaintiffs have satisfied Article III’s standing requirements. In any event, under Miller v. Albright, 523 U.S. 420, 

426-27 (1998), venue under 28 U.S.C. § 1391(e)(1)(C) must be based on the claims of a plaintiff with standing. 

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Second, Texas does not reside in this District for venue purposes. Congress has defined 

residency “[f]or all venue purposes.” See 28 U.S.C. § 1391(c) (emphasis added). The question, then, 

is which of § 1391’s residency definitions applies to Texas. As explained, see Mot. to Transfer at 10-

11, Texas is “an entity with the capacity to sue and be sued in its common name under applicable law” 

under 28 U.S.C. § 1391(c)(2). An “entity” is “[a]n organization (such as a business or a governmental 

unit) that has a legal identity apart from its members or owners.” Entity, Black’s Law Dictionary (11th 

ed. 2019). And a “state,” which is “[a]n institution of self-government within a larger political entity; 

esp., one of the constituent parts of a country having a federal government,” falls within this broad 

definition. State, Black’s Law Dictionary (11th ed. 2019). Congress has repeatedly defined “entity” 

to include governmental units, such as States, providing further evidence that Congress did not 

through silence in Section 1391(c)(2) mean to exclude States. See, e.g., 2 U.S.C. § 1602(14) (“entity” 

includes “State or local government”); 11 U.S.C. § 101(15) (“entity” includes “governmental unit”); 

18 U.S.C. § 2711(4) (“governmental entity” includes “any State”). Thus, for venue purposes, a State 

is an “entity” that, “if a plaintiff,” resides “only in the judicial district in which it maintains its principal 

place of business[,]” 28 U.S.C. § 1391(c)(2)—here, the Western District of Texas. 

 Without addressing the text of § 1391, Texas argues that it resides everywhere within its 

borders. In support, Texas relies on dicta from Atlanta & F.R. Co. v. W. Ry. Co. of Ala., 50 F. 790, 791 

(5th Cir. 1892). Opp. at 8. But Atlanta concerned the residency of corporations for jurisdictional 

purposes; it did not address the residency of States for venue purposes. See 50 F. at 791. Besides, 

Atlanta precedes the modern amendments to the venue statute by decades, and thus it has been 

superseded by the statute’s definitions of “residency” “[f]or all venue purposes.” 28 U.S.C. § 1391(c). 

The cases Plaintiffs cite that rely on Atlanta did not address this key fact. See Opp. at 8. Moreover, 

those cases rely on the Ninth Circuit’s flawed reasoning in California v. Azar, 911 F.3d 558 (9th Cir. 

There is no such plaintiff here. Finally, Plaintiffs state that, “[i]n arguing Texas lacks standing, Defendants do 

not dispute that [they] acted beyond [their] statutory authority to administer ‘foreign affairs.’” Opp. at 7 n.5. 

Texas’s standing is a jurisdictional question distinct from the merits of Plaintiffs’ statutory-authority claim. In 

any event, Defendants have presented evidence demonstrating that the actions Plaintiffs challenge were 

consistent with Defendants’ statutory authority. See, e.g., Mot. to Dismiss at 21-24. 

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2018). California was erroneous in several respects, principally in that the court’s interpretation rewrites 

§ 1391’s definition of “residency . . . [f]or all venue purposes” to “residency . . . for all venue purposes, 

except for States, which reside in any district within their borders.” But courts “are not free to rewrite 

the statutory text.” McNeil v. United States, 508 U.S. 106, 111 (1993).3

Finally, Plaintiffs cannot establish venue by now asserting that events giving rise to the Media 

Plaintiffs’ claims occurred in this District. See Opp. at 10-14. While the Court may consider evidence

beyond the complaint in determining venue, see Ginter, 536 F.3d at 449, it should not consider this new 

basis for venue which is not so much as hinted at in the complaint, see Amr v. Virginia, 2015 WL 236822, 

at *1 (D.C. Cir. 2015) (per curiam) (district court did not err in declining to consider venue bases not 

raised in complaint in a subsequent motion for reconsideration). Regardless, this new theory would 

also fail. As explained, the relevant location is where the defendant’s alleged conduct occurred—in 

this case, Washington, D.C. See Mot. to Transfer at 12-13 (citing Leroy v. Great W. United Corp., 443 

U.S. 173, 183-87 (1979)); see also AGC, 2024 WL 1078260, at *8. That is particularly so where, as here, 

plaintiffs challenge agency action writ large as opposed to an action taken in a particular location. See

AGC, 2024 WL 1078260, at *8. 

 Plaintiffs do not dispute that Defendants’ alleged conduct occurred outside this District and 

instead urge the Court to consider where that conduct “imposes its burdens.” See Opp. at 10. But 

Defendants have shown that none of Defendants’ alleged actions supported any technologies that 

Plaintiffs claim have injured them, and thus Defendants did not impose any burdens on Plaintiffs 

anywhere, much less in this District. See Mot. to Dismiss at 20-24. Further, while Media Plaintiffs 

claim that internet users in this District are prevented from accessing certain content online, Opp. at 

12, “‘events or omissions giving rise to the claim’ [must] implicate[] the parties bringing the claim and 

not a generalized burden on non-parties,” Career Colls. & Schs. of Tex. v. Dep’t of Educ., 2023 WL 

3 Plaintiffs make a cursory argument that, “[i]f Texas’s claims are properly venued, then the other Plaintiffs’ 

claims are also properly venued based on the doctrine of pendent venue.” Opp. at 9. The Court should not 

entertain this assertion. Venue must be proper “for each claim that a plaintiff brings against a defendant,” see, 

e.g., Guajardo v. State Bar of Tex., 803 F. App’x 750, 755 (5th Cir. 2020), and Plaintiffs cite no Fifth Circuit 

authority allowing a claim to move forward based on pendent venue. In any event, Texas’s claims are not 

properly venued for the reasons Defendants provide, and thus there is no basis for pendent venue here. 

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2975164, at *2 (N.D. Tex. Apr. 17, 2023). Moreover, Media Plaintiffs’ theory would suggest that they 

could simply join any person with an internet connection to this suit in order to claim venue wherever 

they prefer. Plaintiffs themselves seem to agree that this would be improper, see Opp. at 13, yet they 

still take this position, in direct contravention of Congress’s limitations on venue to certain districts. 

 Plaintiffs’ reliance on actions in Texas by another non-party, GDI, is equally unavailing. As 

noted, Defendants had nothing to do with GDI’s “Disinformation Risk Assessment,” which was 

supported entirely by private funds. See Mot. to Dismiss at 22. If anything, that report helps show 

that venue is improper, as it was prepared outside of this District at the University of Texas, in Austin. 

Opp. at 13. That the report may be available online does not establish venue here for the same reasons 

as above. Further, it makes no difference whether GDI has a general presence in Texas; GDI could 

exist solely in Texas, and that still would not overcome the evidence showing no connection between 

Defendants’ actions and the GDI technology at issue. Mot. to Dismiss at 21-22. Similarly, it is entirely 

unclear how The Daily Wire’s status as a Texas limited liability company and its “two employees” in 

Texas, Opp. at 14, have any “operative significance in the case,” see Sigoloff v. Austin, 2023 WL 2142982, 

at *2 (N.D. Tex. Feb. 21, 2023). Nor do those contacts show any connection to this District: The 

Daily Wire’s registered Texas address is in Austin, and Plaintiffs do not state that the two Daily Wire 

employees are located in or perform any activities in this District. 

II. This case should be transferred to the District of Columbia 

 This case should be transferred for the reasons in Defendants’ motion. See Mot. to Transfer

at 14-15. No deference is owed to Plaintiffs’ choice of improper venue, see In re Horseshoe Ent., 337 

F.3d 429, 434 (5th Cir. 2003) (“Obviously, to be considered at all, the plaintiff’s choice of forum must 

be one which is permitted under the relevant venue statute”), and there is only one proper forum with 

a meaningful connection to the issues and parties in this case—the District of Columbia. 

CONCLUSION 

 For these reasons, the Court should grant Defendants’ motion to transfer. 

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Dated: April 5, 2024 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

JAMES J. GILLIGAN 

Special Litigation Counsel 

Federal Programs Branch 

JOSHUA E. GARDNER

Special Counsel 

Federal Programs Branch 

/s/Cristen C. Handley 

DOROTHY M. CANEVARI (NY # 5989694) 

CRISTEN C. HANDLEY (MO # 69114) 

CODY T. KNAPP (NY # 5715438) 

ARJUN MODY (DC #90013383) 

Trial Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W. 

Washington, D.C. 20005 

Tel: (202) 305-2677 

Email: Cristen.Handley@usdoj.gov 

Counsel for Defendants 

 

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CERTIFICATE OF SERVICE 

 On April 5, 2024, I electronically submitted this document to the clerk of the court of the 

U.S. District Court for the Eastern District of Texas using the court’s electronic case filing system. I 

certify that I have served all parties electronically or by another manner authorized by Federal Rule 

of Civil Procedure 5(b)(2). 

 /s/ Cristen C. Handley

 CRISTEN C. HANDLEY 

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