Case: 21-160 Document: 15 Page: 1 Filed: 09/24/2021
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: JUNIPER NETWORKS, INC.,
Petitioner
______________________
2021-160
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in Nos.
6:20-cv-00812-ADA, 6:20-cv-00813-ADA, 6:20-cv-00814-
ADA, 6:20-cv-00815-ADA, 6:20-cv-00902-ADA, and 6:20-
cv-00903-ADA, Judge Alan D. Albright.
______________________
ON PETITION
______________________
KEVIN P.B. JOHNSON, Quinn Emanuel Urquhart & Sul-
livan, LLP, Redwood Shores, CA, for petitioner Juniper
Networks, Inc. Also represented by TODD MICHAEL BRIGGS.
SARAH GABRIELLE HARTMAN, Brown Rudnick LLP, Ir-
vine, CA, for respondent WSOU Investments LLC. Also
represented by DAVID STEIN; ALESSANDRA CARCATERRA
MESSING, TIMOTHY J. ROUSSEAU, New York, NY; EDWARD
JOSEPH NAUGHTON, Boston, MA.
______________________
Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
ORDER
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2 IN RE: JUNIPER NETWORKS, INC.
Juniper Networks, Inc., petitions for a writ of manda-
mus directing the United States District Court for the
Western District of Texas to transfer these six actions to
the United States District Court for the Northern District
of California. We hold that in denying the motion to trans-
fer the district court committed legal errors that require
that we vacate the order denying transfer and direct that
the case be transferred under
28 U.S.C. § 1404(a). Accord-
ingly, we grant Juniper’s petition and issue the writ of
mandamus.
I
In September 2020, WSOU Investments LLC d/b/a
Brazos Licensing and Development (referred to here as
“Brazos”) filed seven complaints in the Waco Division of the
Western District of Texas charging Juniper, a Delaware
corporation headquartered in Sunnyvale, California, with
infringing seven different patents that had been assigned
to Brazos. 1
Juniper moved the district court to transfer the case to
the Northern District of California pursuant to
28 U.S.C.
§ 1404(a). Juniper argued that “whatever ties Brazos has
to this District appear to have been created for the purpose
of its patent litigation activities in this District.” Juniper
pointed out that Brazos “describes itself as a patent asser-
tion entity” and that it “does not seem to conduct any busi-
ness” from its recently opened office in Waco other than
filing patent lawsuits. Juniper further pointed out that the
assignment agreement by which Brazos received much of
1 Brazos dismissed one of the complaints. The re-
maining six actions are all before the court in this manda-
mus proceeding. The parties do not suggest that there is
any difference among the actions that matter for purposes
of this proceeding, so we refer to the six actions collectively
as a single case.
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IN RE: JUNIPER NETWORKS, INC. 3
its patent portfolio lists a California address for Brazos,
and that only one of the officers listed on its website resides
in Texas. Two of Brazos’s officers, its CEO and its presi-
dent, reside in California and thus would be subject to com-
pulsory process from a district court in the Northern
District of California. App. 133.
Juniper asserted that the Northern District of Califor-
nia was a clearly more convenient forum than the Western
District of Texas for litigating this case. In a sworn decla-
ration, Juniper stated that the accused products were pri-
marily designed, developed, marketed, and sold from
Juniper’s Sunnyvale headquarters within the Northern
District of California. App. 151. Juniper noted that poten-
tial witnesses who would be expected to testify as to the
structure and function of the accused products, as well as
the marketing and sale of those products, are located in the
Northern District of California, and that Juniper had
“identified no employees involved in the design, develop-
ment, testing, marketing, financing, or sales of the Accused
Products who work in Texas.” App. 150–51.
In response, Brazos pointed out that it maintains an
office in Waco, within the Western District of Texas, where
two persons are employed, and that at the time the com-
plaints were filed, Juniper had a small office in Austin,
Texas, also within the Western District of Texas. 2
The district court denied the motion to transfer. The
court acknowledged that the six actions could have been
brought in the Northern District of California. It then took
note of the four private interest factors and four public
2 Juniper represents that its office in Austin, which
was directed to servicing customers of a company that Ju-
niper acquired, had no involvement relating to the products
at issue in this case. The office was closed shortly after the
last of the complaints in this case was filed.
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4 IN RE: JUNIPER NETWORKS, INC.
interest factors that have traditionally been identified as
the governing factors in determining whether the trans-
feror or the transferee district is the more convenient.
As the court explained, the private factors are (1) the
relative ease of access to sources of proof; (2) the availabil-
ity of compulsory process to secure the attendance of non-
party witnesses whose attendance may need to be com-
pelled by court order; (3) the relative convenience of the two
forums for potential witnesses; and (4) all other practical
problems that make the trial of a case easy, expeditious,
and inexpensive. The four public interest factors are (1)
the administrative difficulties flowing from court conges-
tion; (2) the local interest in having disputes regarding ac-
tivities occurring principally within a particular district
decided in that forum; (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 applica-
tion of foreign law. See In re Volkswagen of Am., Inc.,
545
F.3d 304, 315 (5th Cir. 2008) (en banc); In re Volkswagen
AG,
371 F.3d 201, 203 (5th Cir. 2004).
With respect to the relative ease of access to sources of
proof between the transferor and transferee districts, the
court found that Brazos had not identified any relevant
documents located at its Waco office that were entitled to
any weight in the transfer decision. As for Juniper’s docu-
ments, the court acknowledged that Juniper represented,
without contradiction, that the “majority of the physical
and documentary evidence relating to the cases at hand, as
well as the relevant source code, is stored at its headquar-
ters in California.” However, the court noted that Juniper
had admitted that it stored information in other locations
as well (but not in Texas). For that reason, the court con-
cluded that Juniper had not “sufficiently differentiated
which documents would be more readily available in the
[Northern District of California] compared to the [Western
District of Texas].” The court therefore found that the
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IN RE: JUNIPER NETWORKS, INC. 5
sources-of-proof factor did not weigh either in favor of or
against transfer.
With respect to the availability of compulsory process,
the court found that neither party had identified any of its
proposed witnesses as unwilling witnesses whose appear-
ance would require the issuance of court process. The court
stated that the compulsory process factor “carries little
weight when neither party claims any witnesses would be
unwilling to testify.” Curiously, however, the court then
determined that the compulsory process factor weighed
slightly against transfer.
With respect to the relative convenience of the two fo-
rums for potential witnesses, the court noted that Juniper
had identified eleven potential party witnesses and four
non-party prior-art witnesses, all of whom were located in
the Northern District of California, whereas Brazos had
identified only one potential witness—one of its employ-
ees—who was located in the Western District of Texas.
Nonetheless, the district court concluded that the conven-
ience-to-the-witnesses factor weighed only slightly in favor
of transfer.
The district court explained that, in its view, the con-
venience of party witnesses and prior art witnesses is enti-
tled to little weight. Prior art witnesses, the court stated,
are generally unlikely to testify, and party witnesses are
within the control of the party and can be compelled to tes-
tify wherever the trial is conducted. The court added that
Brazos’s CEO and its president, who would be traveling
from California to testify in Texas if the case were not
transferred, would not be inconvenienced by the need to
travel, because they could work from Brazos’s offices dur-
ing the time that they would be attending the trial. The
court found that the convenience factor weighed in favor of
transfer, but only slightly so.
As for which district has the greater local interest in
the dispute, the district court recognized that the most
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6 IN RE: JUNIPER NETWORKS, INC.
relevant consideration bearing on that factor is where the
development of the allegedly infringing products occurred.
However, the court concluded that the local interest factor
weighed against transfer in this case because “Juniper
maintains a substantial presence in both the WDTX and
Texas as a whole through its Texas offices, and it leased an
office in Austin both at the time of the filing of this lawsuit
as well as the filing of the motion to transfer.” The court
also noted that “Brazos is both headquartered in and has
its principal place of business in Waco, and its ties to the
WDTX are not insignificant.” And the court found that “Ju-
niper has not shown that the development of the accused
products took place entirely within the NDCA.”
Finally, the district court found that the court-conges-
tion factor weighed against transfer because the court in
Waco would be likely to reach trial more quickly than
would be the case in the Northern District of California.
The court found the remaining factors bearing on transfer
to be neutral.
Taking into account the weight it had assigned to each
of the factors it considered, the district court concluded that
Juniper had not established that the Northern District of
California was a clearly more convenient forum for this lit-
igation. Accordingly, the court denied the transfer motion.
II
Congress has authorized district courts to transfer civil
actions “[f]or the convenience of parties and witnesses,
[and] in the interest of justice.”
28 U.S.C. § 1404(a). In
reviewing transfer decisions, we look to the applicable re-
gional circuit law, in this case the law of the Fifth Circuit,
which provides that a motion to transfer venue pursuant to
section 1404(a) should be granted if “the movant demon-
strates that the transferee venue is clearly more conven-
ient[.]” In re Radmax, Ltd.,
720 F.3d 285, 288 (5th Cir.
2013) (quoting Volkswagen, 545 F.3d at 315).
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IN RE: JUNIPER NETWORKS, INC. 7
A district court generally enjoys broad discretion in
making the transfer determination. See In re Vistaprint
Ltd.,
628 F.3d 1342, 1344 (Fed. Cir. 2010). However, when
a district court’s denial of a motion to transfer amounts to
a clear abuse of discretion under governing legal stand-
ards, we have issued mandamus to overturn the denial of
transfer. See, e.g., In re Samsung Elecs. Co.,
2 F.4th 1371
(Fed. Cir. 2021); In re Apple Inc.,
979 F.3d 1332 (Fed. Cir.
2020); In re Hulu, LLC, No. 2021-142,
2021 WL 3278194
(Fed. Cir. Aug. 2, 2021); In re Uber Techs., Inc., 852 F.
App’x 542 (Fed. Cir. 2021); In re TracFone Wireless, Inc.,
848 F. App’x 899 (Fed. Cir. 2021); In re Adobe Inc., 823 F.
App’x 929 (Fed. Cir. 2020); see also Volkswagen, 545 F.3d
at 315. Based on a close study of the record in this case, we
conclude that the district court clearly abused its discretion
in finding that Juniper failed to make the requisite show-
ing to call for transfer of this case to the Northern District
of California.
First, as we have previously explained, the relative
convenience for and cost of attendance of witnesses be-
tween the two forums is “probably the single most im-
portant factor in transfer analysis.” In re Genentech, Inc.,
566 F.3d 1338, 1343 (Fed. Cir. 2009) (quoting Neil Bros.
Ltd. v. World Wide Lines, Inc.,
425 F. Supp. 2d 325, 329
(E.D.N.Y. 2006)); see Apple, 979 F.3d at 1341; In re Acer
Am. Corp.,
626 F.3d 1252, 1255 (Fed. Cir. 2010). In this
instance, the district court clearly erred in not giving suffi-
cient weight to the relative convenience of the transferee
forum for the potential witnesses, particularly in light of
the striking imbalance in the parties’ respective presenta-
tions on this factor.
Juniper identified eleven potential party witnesses
who were located in the Northern District of California,
while Brazos identified only one party witness in the West-
ern District of Texas. The district court attached little
weight to the evidence regarding the party witnesses, how-
ever. Citing one of its own prior decisions, the court stated
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8 IN RE: JUNIPER NETWORKS, INC.
that “party witnesses are generally accorded little weight
as they can be compelled by the parties to testify.”
The district court also stated that it “assumes that no
more than a few party witnesses will testify live at trial”
and that in any event “it is unlikely that all of them will
testify.” The court’s assumption that Juniper would not
call many party witnesses was not based on any evidence
specific to this case. On the other side of the ledger, only
one witness was identified as being located in or near the
Western District of Texas, and that witness, a Brazos em-
ployee, was not alleged to have information relating to the
merits of the infringement claims against Juniper.
As for prior-art witnesses, the court stated that they
“are accorded little weight in the analysis as they are gen-
erally considered unlikely to testify.” The court again cited
one of its own prior opinions as support for that statement.
We have previously rejected the district court’s reliance
on the proposition that the convenience-to-the-witnesses
factor is attenuated when the witnesses are employees of
the party calling them. See Hulu,
2021 WL 3278194, at *5
(rejecting district court’s position that a party’s ability to
compel the testimony of its employees supported giving the
location of those witnesses little or no weight under a will-
ing witness factor). We have also rejected the district
court’s categorical assumption that defendants are likely to
call few if any of the proposed party witnesses or prior-art
witnesses that are identified for purposes of supporting
transfer motions. See Samsung, 2 F.4th at 1379; In re Ap-
ple Inc., 818 F. App’x 1001, 1003 (Fed. Cir. 2020); In re
DISH Network, L.L.C., 856 F. App’x 310, 311 (Fed. Cir.
2021); Uber, 852 F. App’x at 543. In Hulu, we also disap-
proved of the district court’s discounting all of Hulu’s prior
art witnesses; we stated that the “categorical rejection of
Hulu’s witnesses is entirely untethered to the facts of this
case and therefore was an abuse of discretion.”
2021 WL
3278194, at *3.
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IN RE: JUNIPER NETWORKS, INC. 9
The force of Juniper’s showing as to the inconvenience
and cost entailed in requiring witnesses to testify at a re-
mote forum is particularly strong in light of the very weak
showing on that issue made by Brazos. As we explained in
Samsung, “[e]ven if not all witnesses testify, with nothing
on the other side of the ledger, the factor strongly favors
transfer.” Samsung, 2 F.4th at 1379; see also Hulu,
2021
WL 3278194, at *5.
Second, the district court erred in applying the local in-
terest factor. The court acknowledged that the events
forming the basis for Brazos’s infringement claims oc-
curred mainly in the Northern District of California; none
occurred in the Western District of Texas. That is suffi-
cient to give the transferee venue a greater localized inter-
est in the dispute, which favors transfer. See Samsung, 2
F.4th at 1380 (transfer favored because most, even if not
all, of the underlying research, design, and development of
the accused products centered on activity within the trans-
feree venue); Acer,
626 F.3d at 1256 (transfer favored be-
cause “[t]he company asserting harm and many of the
companies alleged to cause that harm are all residents of
that district, as are the inventor and patent prosecuting at-
torneys whose work may be questioned at trial”).
The district court’s conclusion that the local interest
factor weighed against transfer was premised on the fact
that Juniper had leased a small office in Austin at the time
the motion to transfer was filed. But as the district court
acknowledged, Juniper’s office in Austin existed “to service
a startup company that Juniper acquired which has no con-
nection with the products accused of infringement in these
cases.”
Juniper’s general presence in the Western District of
Texas is not enough to establish a local interest in that dis-
trict comparable to that of the Northern District of Califor-
nia. As we explained in In re Apple, this factor “most
notably regards not merely the parties’ significant
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10 IN RE: JUNIPER NETWORKS, INC.
connections to each forum writ large, but rather the ‘signif-
icant connections between a particular venue and the
events that gave rise to a suit.’” 979 F.3d at 1345 (quoting
Acer,
626 F.3d at 1256) (emphasis in Apple). In that case,
we held that the district court “misapplied the law to the
facts” when it “heavily weigh[ed]” the defendant’s “general
contacts with the forum that are untethered to the law-
suit.” Id.; see also In re Google LLC, 855 F. App’x 767, 768
(Fed. Cir. 2021) (“Google’s mere presence in the Western
District of Texas insofar as it is not tethered to the events
underlying the litigation is not entitled to weight in ana-
lyzing the local interest factor in this case.”); DISH Net-
work, 856 F. App’x at 311; Samsung, 2 F.4th at 1380.
Aside from Juniper’s general presence in Austin, the
district court relied on the fact that Brazos was incorpo-
rated in Texas and maintained its principal office in Waco,
within the Western District of Texas. But Brazos’s status
as a Waco-based entity is not entitled to significant weight.
Brazos’s presence in Waco appears to be both recent and
relatively insubstantial. The office was established only a
few months before the complaints against Juniper were
filed, and the activities of the office are largely tied to bring-
ing lawsuits in that court. Brazos has only two employees
who work from Waco, one of whom is its in-house attorney
responsible for litigation. The principal officers of Brazos
are located in California.
We have noted in other mandamus cases that little or
no weight should be accorded to a party’s “recent and
ephemeral” presence in the transferor forum, such as by
establishing an office in order to claim a presence in the
district for purposes of litigation. See In re Microsoft Corp.,
630 F.3d 1361, 1365 (Fed. Cir. 2011); see also Samsung, 2
F.4th at 1378; In re Zimmer Holdings, Inc.,
609 F.3d 1378,
1381 (Fed. Cir. 2010) (party shared office space in the
transferor district; its presence in Texas “appears to be re-
cent, ephemeral, and an artifact of litigation”); In re Apple
Inc., 374 F. App’x 997, 999 (Fed. Cir. 2010) (“[T]he status
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IN RE: JUNIPER NETWORKS, INC. 11
of Personal Audio, LLC, as a Texas corporation is not enti-
tled to significant weight, inasmuch as the company’s pres-
ence in Texas appears to be both recent and ephemeral—
its office is apparently the office of its Texas litigation coun-
sel, and it appears not to have any employees in Texas.”).
Brazos’s presence in the Western District of Texas is
insubstantial compared to the presence of Juniper in the
Northern District of California. See Microsoft,
630 F.3d at
1364. Moreover, it appears that the relationship between
the Texas forum and Brazos is merely the product of pur-
suing litigation in a preferred forum and is entitled to little
weight. Cf. In re Hoffmann-La Roche Inc.,
587 F.3d 1333,
1337 (Fed. Cir. 2009) (characterizing pre-litigation transfer
of documents as “a fiction which appears to have been cre-
ated to manipulate the propriety of venue” and concluding
that the denial of transfer “ha[d] no legally rational basis”
as a result).
Third, the district court erred in its assessment of the
availability of sources of proof. Juniper submitted a sworn
declaration from its Senior Director of Strategy & Corpo-
rate Development attesting to the fact that Juniper “stores
the majority of its documentary evidence relevant to the
Accused Products . . . at its Sunnyvale headquarters.”
App. 151. The district court faulted the declaration as not
being specific enough, stating that “[v]ague assertions that
the ‘majority’ of the evidence relating to the accused de-
vices is located in California invites this court to speculate
on where particular pieces of evidence are located.”
That criticism is unjustified. The declaration ex-
plained that the evidentiary records maintained at Juni-
per’s Sunnyvale headquarters included “records relating to
the research and design of the Accused Products, source
code, and marketing, sales, and financial information for
the Accused Products.” App. 151. Moreover, while Juniper
maintains evidence on servers in other locations, it is un-
disputed that no Juniper evidence relating to the facts of
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12 IN RE: JUNIPER NETWORKS, INC.
these lawsuits is located in the Western District of Texas.
The only evidence that was identified as being located in
that district belonged to Brazos. And as to that evidence,
the district court found that it was not sufficiently relevant
to be entitled to any weight at all.
We have held that the fact that some evidence is stored
in places other than either the transferor or the transferee
forum does not weigh against transfer. See In re Toyota
Motor Corp.,
747 F.3d 1338, 1340 (Fed. Cir. 2014); In re HP
Inc., 826 F. App’x 899, 902 (Fed. Cir. 2020). What matters
is the relative access to sources of evidence in the two com-
peting forums. See Radmax, 720 F.3d at 288 (noting “the
question is relative ease of access, not absolute ease of ac-
cess”) (emphasis omitted). And while electronic storage of
documents makes them more widely accessible than was
true in the past, that does not make the sources-of-proof
factor irrelevant. See Volkswagen, 545 F.3d at 316 (“That
access to some sources of proof presents a lesser inconven-
ience now than it might have absent recent developments
does not render this factor superfluous.”). Based on the dif-
ference between the two venues with respect to the sources
of proof, the district court should have weighed that factor
in favor of transfer.
Fourth, the court erred in finding that the potential
need for recourse to compulsory process weighed against
transfer. The sole basis for the district court’s finding on
that factor was the parties’ failure to identify any unwilling
witnesses who would need to be subpoenaed. That no party
expressly identified any witness as unwilling to testify,
however, does not cut in favor of conducting this litigation
in the Western District of Texas rather than in the North-
ern District of California. The district court’s analysis of
the compulsory process factor confuses “[the] burden of
demonstrating that the transferee venue is clearly more
convenient with the showing needed for a conclusion that
a particular private or public interest factor favors trans-
fer.” Apple, 979 F.3d at 1340. Taking the court’s findings
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IN RE: JUNIPER NETWORKS, INC. 13
on their own terms, this factor should be regarded as neu-
tral at most, and certainly not as weighing against trans-
fer. In fact, because Juniper identified several non-party
potential witnesses in the Northern District of California,
and Brazos identified none in the Western District of
Texas, it is puzzling why this factor was not treated as
weighing at least slightly in favor of transfer.
Finally, the district court’s conclusion that the court-
congestion factor weighed against transfer rested solely on
Brazos’s assertion that the Texas forum had a faster me-
dian time to trial than the California forum. The district
court, however, did not explain how that difference in the
prospective time to trial was caused by an appreciable dif-
ference in the degree of docket congestion between the two
forums.
We have noted that the Western District of Texas and
the Northern District of California show no significant dif-
ferences in caseload or time-to-trial statistics. See Sam-
sung, 2 F.4th at 1380–81; Apple, 979 F.3d at 1343–44. The
district court based its analysis on scheduled trial dates.
But we have held that it is improper to assess the court
congestion factor based on the fact that the Western Dis-
trict of Texas has employed an aggressive scheduling order
for setting a trial date. See Samsung, 2 F.4th at 1380–81;
Apple, 979 F.3d at 1344; see also Hulu,
2021 WL 3278194,
at *5 (determining that the court congestion factor was
neutral after considering the close similarity in the number
of cases per judgeship and the actual average time to trial
in the Western District of Texas and the Northern District
of California, and noting that the “consideration that the
district court assumed tipped the scales toward denying
transfer was its own ability to set an early trial date and
bring a case to trial earlier than district-wide statistics
would suggest”); Adobe, 823 F. App’x at 932 (“The factor
concerns whether there is an appreciable difference in
docket congestion between the two forums. . . . Nothing
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14 IN RE: JUNIPER NETWORKS, INC.
about the court’s general ability to set a schedule directly
speaks to that issue.”); Samsung, 2 F.4th at 1380–81.
In any event, we do not regard the relative speed with
which this case might be brought to trial in the two dis-
tricts to be of particular significance. See Samsung, 2 F.4th
at 1380–81. We have described the court congestion factor
as the “most speculative” of the factors bearing of the trans-
fer decision. Genentech,
566 F.3d at 1347; see also Apple,
979 F.3d at 1344 n.5. And when other relevant factors
weigh in favor of transfer or are neutral, “then the speed of
the transferee district court should not alone outweigh
those other factors.” Genentech,
566 F.3d at 1347.
Beyond that, Brazos is not engaged in the manufacture
or sale of products that practice the asserted patents. In-
stead, Brazos describes itself as a company that “help[s] in-
ventors and patent owners maximize the full potential of
their patents.” App. 262. It does not suggest it is in need
of a quick resolution because its position in the market is
being threatened. Even if the district court’s projection of
the likely time to trial in the two venues is accurate, the
court did not point to any reason that a more rapid dispo-
sition of the case that might be available in Texas is worthy
of important weight. See In re Morgan Stanley, 417 F.
App’x 947, 950 (Fed. Cir. 2011).
In sum, this case is a very close cousin of our recent
decisions in Samsung and Hulu, and the disposition of this
case is largely dictated by the disposition of those cases. In
those cases, as in this one, the center of gravity of the action
was clearly in the transferee districts, not the Western Dis-
trict of Texas. And as in those cases, several of the most
important factors bearing on the transfer decision in this
case strongly favor the transferee court, and no factor fa-
vors retaining the case in the transferor court. See In re
Nintendo Co.,
589 F.3d 1194, 1198 (Fed. Cir. 2009) (“This
court has held and holds again in this instance that in a
case featuring most witnesses and evidence closer to the
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IN RE: JUNIPER NETWORKS, INC. 15
transferee venue with few or no convenience factors favor-
ing the venue chosen by the plaintiff, the trial court should
grant a motion to transfer.”).
Accordingly,
IT IS ORDERED THAT:
The petition is granted. The district court’s order deny-
ing Juniper’s motion to transfer is vacated, and the district
court is directed to grant the transfer motion.
FOR THE COURT
September 24, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
