Opinion · Court of Appeals for the Fifth Circuit
In Re: TikTok, Inc.
In Re : TikTok, Inc., No. 23-50575, UP9894244 (5th Cir. Oct. 31, 2023)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 2023-10-31
- Topic
- litigation
Case: 23-50575 Document: 00516951232 Page: 1 Date Filed: 10/31/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED October 31, 2023 No. 23-50575 Lyle W. Cayce ____________ Clerk In re TikTok, Incorporated; TikTok Pte., Limited; ByteDance, Limited; ByteDance, Incorporated, Petitioners. ______________________________ Petition for Writ of Mandamus to the United States District Court for the Western District of Texas USDC No. 6:21-CV-504 ______________________________ Before Smith, Southwick, and Wilson, Circuit Judges. Jerry E. Smith, Circuit Judge: A writ of mandamus is reserved for extraordinary circumstances. TikTok, Incorporated, and various related entities contend that the district court’s denial of their motion to transfer to the Northern District of Cali- fornia was so patently erroneous that this rare form of relief is warranted.
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Case: 23-50575 Document: 00516951232 Page: 1 Date Filed: 10/31/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 31, 2023
No. 23-50575 Lyle W. Cayce
____________ Clerk
In re TikTok, Incorporated; TikTok Pte., Limited;
ByteDance, Limited; ByteDance, Incorporated,
Petitioners.
______________________________
Petition for Writ of Mandamus to
the United States District Court
for the Western District of Texas
USDC No. 6:21-CV-504
______________________________
Before Smith, Southwick, and Wilson, Circuit Judges.
Jerry E. Smith, Circuit Judge:
A writ of mandamus is reserved for extraordinary circumstances.
TikTok, Incorporated, and various related entities contend that the district
court’s denial of their motion to transfer to the Northern District of Cali-
fornia was so patently erroneous that this rare form of relief is warranted.
After reviewing the parties’ submissions, the conscientious district court’s
opinion, and the factual record, we agree. This case was brought by a Chinese
plaintiff, challenges conduct that took place mostly in China and to a lesser
extent in California and rises or falls with proof located outside the Western
District of Texas. Under our precedent, denying petitioners’ motion to
transfer was a clear abuse of discretion, and because petitioners satisfy the
other requirements for mandamus relief, their petition for writ of mandamus
is granted.
Case: 23-50575 Document: 00516951232 Page: 2 Date Filed: 10/31/2023
No. 23-50575
I.
TikTok is a popular application that allows users to edit and share
short videos. The application depends in part on software that enables video
and audio editing by its users. Beijing Meishe Network Technology Co., Ltd.
(“Meishe”), is a Chinese company and the owner of several Chinese copy-
rights covering the source code for a specific type of video- and audio-editing
software. 1 Meishe alleges that one of its former employees disclosed that
source code to petitioners, who used the code to develop a video-editing
functionality that was then implemented into the current version of TikTok.
The development of the video-editing functionality took place in China and
was implemented into TikTok in part by a team of engineers located in
California.
That team of engineers works in petitioners’ Mountain View office,
within the Northern District of California. One member of the engineering
team works remotely from Irving, Texas, in the Northern District of Texas
and 113 miles from the relevant Western District of Texas courthouse in
Waco. 2 Petitioners do have a large presence in the Western District of Texas
in the form of a 300-person office in Austin. But the Austin office is a busi-
ness office that does not perform engineering work, and no employee in the
_____________________
1
The parties do not dispute at this point in the litigation that the Chinese copy-
rights are enforceable in the United States. See 17 U.S.C. § 104
(b)(2); Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, L.L.C.,139 S. Ct. 881, 891
(2019) (recognizing that Con-
gress removed foreign works from the Copyright Act’s registration requirement).
2
The engineer’s exact address is in the record filed under seal, and we may take
judicial notice of the distance between this address and the Waco federal courthouse. Cf.
United States v. Herrera-Ochoa, 245 F.3d 495, 502
(5th Cir. 2001) (recognizing that courts may take judicial notice of a “clear adjudicative fact: geographical location.”); Swindol v. Aurora Flight Scis. Corp.,805 F.3d 516
, 518–19 (5th Cir. 2015) (recognizing that judicial
notice may be taken sua sponte on appeal). Petitioners’ contentions that this engineer has
since moved to California lack record support.
2
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Austin office was involved in the development or implementation of the
video-editing functionality. The only employees who can access the source
code used in the video-editing functionality are the Chinese employees who
developed it and the California engineering team who implemented it.
In May 2021, Meishe filed this lawsuit in the Western District of
Texas, Waco Division. It alleged copyright infringement and trade-secret
misappropriation, false advertising under the Lanham Act, and state law
claims for unfair competition, unjust enrichment, and aiding and abetting a
breach of fiduciary duty. All claims stem from petitioners’ alleged use of
Meishe’s source code to develop and implement TikTok’s current video-
editing functionality. Meishe also filed lawsuits in China alleging substan-
tially the same claims; those suits are ongoing.
Petitioners first filed a motion to dismiss Meishe’s claims and a
motion to stay the case pending adjudication of the Chinese lawsuits. Shortly
thereafter, petitioners moved under 28 U.S.C. § 1404
to transfer the case to
the Northern District of California. Almost a year later, a magistrate judge
issued a recommended order denying transfer, 3 and the district court
adopted that order in full. 4 While the motion to transfer was pending, the
case proceeded though discovery, and a trial date was set for April 2024.
Upon denial of the motion to transfer, petitioners petitioned this court timely
for a writ of mandamus directing the district court to transfer this case to the
Northern District of California.
_____________________
3
Beijing Meishe Network Tech. Co. v. Tiktok Inc., No. 6:21-cv-504, 2023 U.S. Dist. LEXIS 63036
(W.D. Tex. Apr. 11, 2023).
4
Because the district court adopted the magistrate judge’s report in full, all ref-
erences to the district court’s analysis are synonymous with references to the magistrate
judge’s recommended order.
3
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II.
Plaintiffs are permitted to engage in a certain amount of forum-
shopping. Cf. Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 293
(5th Cir. 2016) (recognizing that Rule 41(a)(1) permits voluntary dismissal to secure a plaintiff’s preferred forum). Defendants can protect themselves from the most blatant forum-shopping by invoking28 U.S.C. § 1404
(a). That statute allows a district court to transfer “any civil action to any other district or division where it might have been brought” when the “convenience of parties and witnesses” and “the interest of justice” so require.Id.
5 “[M]andamus is an appropriate means of testing a district court’s § 1404(a) ruling.” In re Volkswagen of Am., Inc.,545 F.3d 304, 309
(5th Cir. 2008) (en
banc).
A petitioner must satisfy three requirements for a writ of mandamus.
First, there must be “no other adequate means to attain the relief . . .
desire[d].” Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367
, 380– 81 (2004). Second, the “right to issuance of the writ” must be “clear and indisputable.”Id.
(internal quotation marks omitted). In the § 1404(a) con- text, “the second requirement . . . captures the essence of the disputed issue.” Volkswagen,545 F.3d at 311
. That is because this circuit has estab- lished that the first “mandamus requirement is satisfied in the motion-to- transfer context.” In re Radmax, Ltd.,720 F.3d 285
, 287 n.2 (5th Cir. 2013) (per curiam). Third, and finally, “even if the first two prerequisites [are] met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Cheney,542 U.S. at 381
.
_____________________
5
All parties agree that this case “might have been brought” in the Northern Dis-
trict of California.
4
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III.
Petitioners have a clear and indisputable right to the writ where “the
district court clearly abuse[s] its discretion . . . in denying [the] transfer
motion.” Volkswagen, 545 F.3d at 311
. That means the Northern District of California must be “a clearly more convenient venue than the” Western District of Texas such that “the district court’s ruling to the contrary was a clear abuse of discretion” leading to a “patently erroneous result.” Radmax,720 F.3d at 287, 290
(cleaned up).
The district court should grant a motion to transfer venue under
§ 1404(a) where
“the movant demonstrates that the transferee venue is clearly
more convenient,” taking into consideration (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”; (4) “all
other practical problems that make trial of a case easy, expedi-
tious and inexpensive”; (5) “the administrative difficulties
flowing from court congestion”; (6) “the local interest in hav-
ing localized interests decided at home”; (7) “the familiarity of
the forum with the law that will govern the case”; and (8) “the
avoidance of unnecessary problems of conflict of laws [or in]
the application of foreign law.”
Id. at 288 (quoting Volkswagen, 545 F.3d at 315
). No factor is of dispositive weight, and we have cautioned against a “raw counting of the factors” that “weigh[s] each the same.”Id.
at 290 n.8. Indeed, we have found an abuse of discretion even where a majority of factors are neutral. See id. at 290 (granting mandamus when five factors were neutral and three weighed in favor of transfer). That is because Volkswagen recognized that a district court abuses its discretion by denying transfer when “not a single relevant factor favors the [plaintiff’s] chosen venue.” Volkswagen,545 F.3d at 318
.
5
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The district court denied petitioners’ motion to transfer after finding
that five of the eight factors were neutral, and three weighed against
transferring to California. As we explain, that well-intended conclusion
“was a clear abuse of discretion” leading to a “patently erroneous result.”
Id. at 287, 290 (cleaned up). We address each factor in turn.
The relative ease of access to sources of proof
The first factor focuses on the location of “documents and physical
evidence relating to the [case].” Volkswagen, 545 F.3d at 316
. “The question is relative ease of access, not absolute ease of access.” Radmax,720 F.3d at 288
. That means this factor weighs in favor of transfer where the current district lacks any evidence relating to the case. See Volkswagen,545 F.3d at 316
. But when “the vast majority of the evidence [is] electronic, and therefore equally accessible in either forum[,]” this factor bears less strongly on the transfer analysis. In re Planned Parenthood Fed’n Am., Inc.,52 F.4th 625, 630
(5th Cir. 2022).
The district court determined that this factor was neutral with respect
to transfer because “most, if not all of the relevant documents are electronic
and can be available as easily in Texas as in California.” TikTok, 2023 U.S. Dist. LEXIS 63036
, at *12. The record flatly contradicts that conclusion. As the district court recognized, the petitioners’ source code is the most impor- tant evidence in this case. It is undisputed that only certain of petitioners’ employees can access the source code because petitioners have placed it behind a security clearance. Therefore, the key evidence may be electronic, but unlike in Planned Parenthood, it is not “equally accessible in either forum.”52 F.4th at 630
. Rather, the record established that there are two
groups of employees with this security clearance: The Chinese employees
who developed the video-editing functionality and members of the California
engineering team who implemented the functionality into TikTok.
6
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The district court concluded that the source code was accessible as
easily in Texas as in California because one member of the California engin-
eering team with the needed security clearance worked remotely in Irving,
Texas. But the court erred by comparing Texas with California when it
should have been comparing the Western District of Texas with the Nor-
thern District of California. Cf. Volkswagen, 545 F.3d at 307
(comparing the
Eastern District of Texas with the Northern District of Texas). The one
employee in Texas who possessed the needed security clearance lived in the
Northern District of Texas.
There are no employees in the Western District of Texas who can
access the source code. The only way it can be accessed there is if out-of-
district individuals travel into the district, “bringing” the electronic evidence
with them. 6 That, of course, is possible, but the question under the first
factor is “relative ease of access, not absolute ease of access.” Radmax,
720 F.3d at 288
. It is relatively easier to access to the source code in the
Northern District of California—where a majority of the engineering team is
based—than it is in the Western District of Texas, where the source code can
be accessed only by bringing far-flung individuals into the district. The dis-
trict court abused its discretion in finding that the source code was accessible
as easily in Texas as in California.
The district court also based its conclusion that this factor was neutral
_____________________
6
This discussion should not be seen as unsettling the understanding that the first
factor looks only at ease of access to non-witness evidence, while the second and third
factors relate to the convenience of each forum for witnesses. See In re Apple, Inc., 979 F.3d 1332
, 1339–40 (Fed. Cir. 2020) (applying Fifth Circuit law). To the extent there is any
overlap between the factors in this case, it flows from the fact that only a select few indi-
viduals have access to the key non-witness evidence in this case. The non-witness evidence
“travels” with the employees who have the needed security clearance. Therefore, the loca-
tion of those individuals necessarily bears on which forum has relative ease of access to
sources of proof.
7
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on a finding that petitioners’ “President of Global Business Solutions . . .
lives and works in [the Western District of Texas] along with over 300 other
employees.” TikTok, 2023 U.S. Dist. LEXIS 63036
, at *12–13. In the district court’s view, petitioners’ large presence in the Western District of Texas raises an “extremely plausible and reasonable inference” that these employ- ees possess some relevant documents.Id.
But the district court cannot rely
on the mere fact that petitioners have a general presence in the Western
District of Texas because Volkswagen commands courts to assess its eight
factors considering the circumstances of the specific case at issue. 7
Neither the district court nor Meishe identifies any record evidence
showing that any employee in the Western District of Texas possesses proof
relevant to this case. The district court relied on deposition testimony and
witness declarations from several of petitioners’ employees. That evidence,
however, only establishes that a high-ranking company executive and other
employees worked in Austin as members of a “Global Business Solutions
Group.” It does not tie those individuals to this case, or show that they do
any work related to the video-editing functionality or its implementation, or
support the proposition that any of them would have physical proof relevant
to the adjudication of Meishe’s claims. Based on what is in the record—as
distinguished from Meishe’s unsupported contentions in various litigation
documents—it is pure speculation whether any of petitioners’ Austin-based
employees possesses or has access to proof relevant to this case.
Abuse-of-discretion review is deferential; it is not a rubber stamp. We
must credit a district court’s reasonable inferences when they are rooted in
record evidence. But where, as here, there is nothing in the record support-
_____________________
7
Cf. Volkswagen, 545 F.3d at 312
(finding a clear abuse of discretion where “nothing
. . . ties this case to the Marshall Division.”).
8
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ing its conclusions, we may comfortably say that the court has committed a
clear abuse of discretion in surmising that petitioners’ employees in the Wes-
tern District of Texas possess evidence related to this case.
Therefore, this factor weighs in favor of transfer because, as in Volks-
wagen, no evidence relevant to this case is in the transferor district. The
district court committed a clear abuse of discretion in concluding otherwise.
The availability of compulsory process
The second factor focuses on “the availability of compulsory process
to secure the attendance of witnesses.” Volkswagen, 545 F.3d at 315
. This factor favors transfer where “non-party witnesses . . . are outside the [Wes- tern] District’s subpoena power” and “a proper venue that does enjoy absolute subpoena power for both depositions and trial” is available.Id. at 316
(cleaned up). “[T]he availability of compulsory process receives less
weight when it has not been alleged or shown that any witness would be
unwilling to testify.” Planned Parenthood, 52 F.4th at 630–31 (internal quo-
tation marks omitted).
The parties dispute whether the district court determined that this
factor was neutral or weighed against transferring to California. Meishe con-
tends that the district court determined this factor was neutral with respect
to transfer because petitioners had not identified any non-party witnesses
who are unwilling to testify. Petitioners do not dispute that they failed to
identify any non-party witnesses who are unwilling to testify. Rather, they
contend that the district court erred in finding that, absent such a showing,
this factor disfavored transfer. The district court’s holding on this factor is
admittedly subject to interpretation. The court first said that it “agreed”
with Meishe’s contention that this factor “weighs against transfer[,]” but
then said that “this factor fails to support transfer.” TikTok, 2023 U.S. Dist. LEXIS 63036
, at *14–16.
9
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Though the district court have been more explicit, the overall tenor of
this part of its opinion shows that it determined this factor was neutral. On
the very next line after expressing agreement with Meishe’s contention, the
court explicitly said that petitioners have “again failed to show that this factor
favors transfer, and certainly doesn’t show that NDCA is clearly more con-
venient.” Id. at 16
. Therefore, whatever the court meant by expressing
agreement with Meishe’s contention that this factor disfavored transfer, it
actually held that this factor was neutral.
Given that Planned Parenthood allows district courts to afford this fac-
tor “less weight when it has not been alleged or shown that any witness would
be unwilling to testify[,]” we cannot say that the district court committed a
clear abuse of discretion in holding that this factor is neutral when petitioners
have failed to identify any unwilling non-party witness. Planned Parenthood,
52 F.4th at 630–31 (internal quotation marks omitted).
The cost of attendance for willing witnesses
The third factor focuses on “the cost of attendance for willing wit-
nesses.” Volkswagen, 545 F.3d at 315
. Our circuit uses a “100-mile thresh- old” in assessing this factor.Id. at 317
. “When the distance between an
existing venue for trial . . . and a proposed venue under § 1404(a) is more than
100 miles, the factor of inconvenience to the witnesses increases in direct
relationship to the additional distance to be traveled.” Id. (internal quotation
marks omitted). This is an “obvious conclusion” because “it is more con-
venient for witnesses to testify at home[,]” and “additional distance means
additional travel time . . . meal and lodging expenses” and time “witnesses
must be away from their regular employment.” Id. (cleaned up). Witnesses
also suffer “personal costs associated with being away from work, family, and
community” when they testify far from home. Id.
The district court determined that this factor was neutral primarily
10
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because “the key witnesses and the employee at the heart of the misappro-
priation claim are in China.” TikTok, 2023 U.S. Dist. LEXIS 63036
, at *20.
That conclusion ignores our 100-mile test. Indeed, the district court failed
to discuss that part of Volkswagen. Accepting the court’s finding that the
“bulk of relevant witnesses [are] in China[,]” it is indisputable that the Nor-
thern District of California is clearly more convenient for these witnesses
than the Western District of Texas. 8
It is true that one of the engineers who implemented the video-editing
functionality lives in Irving, Texas—only 113 miles from the Waco federal
courthouse. But most relevant witnesses are in China or California. The
presence of one Texas witness cannot overcome the immense inconvenience
that the majority of relevant witnesses would face if this case were to be tried
in Texas. 9 These witnesses would have to travel thousands of extra miles,
_____________________
8
Cf. In re Nintendo Co., 589 F.3d 1194, 1199
(Fed. Cir. 2009) (applying Fifth Circuit
law to hold that this factor clearly favored transfer when some key witnesses were from
Japan and “would each have to travel an additional 1,756 miles or 7 hours by plane to Texas
as compared with Washington State.”).
9
The district court found that there were witnesses in the Western District of
Texas relevant to determining Meishe’s damages. That finding was a clear abuse of dis-
cretion because—as with the findings under factor one—the record is devoid of any evi-
dence supporting an inference that petitioner’s Austin employees have any knowledge of
or connection to this specific dispute. In concluding otherwise, the district court relied on
the same depositions and witness declarations as it did in factor one. But as we have already
explained, that evidence only establishes that a high-ranking company executive and other
employees worked in Austin as members of a “Global Business Solutions Group.” The
evidence amounts to an acknowledgement of these employees’ existence and a recognition
that they work in petitioners’ business department. It is rank speculation whether these
employees have any knowledge that would make them relevant witnesses.
Therefore, as in factor one, the district court committed a clear abuse of discretion
by including petitioners’ Austin employees in its analysis. And even if there were relevant
witnesses in the Western District of Texas, that does not change the fact that the vast
majority of witnesses, including the individual who supposedly misappropriated the source
code, are located thousands of miles from Waco.
11
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incurring substantial “additional travel time . . . meal and lodging ex-
penses[,]” time “away from their regular employment[,]” and “personal
costs associated with being away from work, family, and community.”
Volkswagen, 545 F.3d at 317
(cleaned up).
In sum, the district court’s analysis of this factor should have ended
with its recognition that “the bulk of relevant witnesses [are] in China.”
TikTok, 2023 U.S. Dist. LEXIS 63036
, at *20. Under Volkswagen’s 100-mile
threshold, the Northern District of California is a clearly more convenient
venue for most relevant witnesses in this case. The district court committed
a clear abuse of discretion in concluding otherwise.
All other practical problems
The fourth factor considers “all other practical problems that make
trial of a case easy, expeditious and inexpensive.” Volkswagen, 545 F.3d at 315
. This factor weighs against transfer when petitioners “inexcusably delayed” bringing their motion until “late in the litigation.” Planned Parent- hood,52 F.4th at 631
. But “garden-variety delay associated with transfer is not to be taken into consideration when” weighing this factor. Radmax,720 F.3d at 289
. Additionally, a hypothetical question about whether the transferee forum would have personal jurisdiction over a party cannot, by itself, justify a conclusion that this factor weighs against transfer. See Def. Distrib. v. Bruck,30 F.4th 414
, 435–36 (2022).
The district court determined that this factor weighed against transfer
because it had already committed significant judicial resources to the matter
and developed a “body of knowledge” relating to the case. Petitioners con-
tend that the court abused its discretion in considering knowledge acquired
and resources expended after the filing of their § 1404(a) motion. We agree;
under the specific facts of this case, the court abused its discretion in consid-
12
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ering post-motion events under this factor. 10 “[D]isposition of a [§ 1404(a)]
motion should [take] a top priority in the handling of a case.” In re Horseshoe
Ent., 337 F.3d 429, 433
(5th Cir. 2003). A district court that disregards this
command without reason by taking an excessively long time to rule cannot
then turn around and use the progress the case has made while the § 1404(a)
motion was pending as a reason to deny transfer.
The magistrate judge did not issue the recommended order until
approximately 11 months after petitioners had originally filed their motion to
transfer. The district court did not adopt that recommendation and enter the
official order denying transfer until approximately 14 months after peti-
tioners had originally filed their motion. A delay of this length is a plain vio-
lation of our instruction to give § 1404(a) motions “a top priority in the
handling of a case.” Id. Neither the district court nor the magistrate judge
has offered any adequate explanation for why this motion lingered on the
docket for such a long period of time in contravention of Horseshoe’s com-
mand. 11 We cannot accept Meishe’s view that this factor permits a district
_____________________
10
Petitioners cite Hoffman v. Blaski, 363 U.S. 335, 343
(1960), and Nintendo to con- tend that district courts are per se forbidden from considering post-motion events under this factor. Blaski is inapposite because the relevant part of the opinion was interpreting a different part of § 1404(a). See Blaski,363 U.S. at 343
(interpreting the phrase “where it
might have been brought.”).
Nintendo does analyze the second and third factors “[a]t the time Nintendo
requested transfer.” 589 F.3d at 1197
. But the Federal Circuit never held that this temporal
frame applied throughout the § 1404(a) analysis; the case never even discussed this factor.
See id. at 1198–1200. Petitioners have cited no binding case that supports a per se limitation
on a district court’s ability to consider post-motion events when assessing this factor. We
decline to draw that bright line here. Rather, under the specific circumstances of this case,
the court abused its discretion in considering post-motion events.
11
The magistrate judge did note that petitioners had filed a reply to Meishe’s oppo-
sition to the § 1404(a) motion that contained several voluminous exhibits. But that cannot
explain the extended delay because the magistrate judge explicitly said “[t]he Court will
also not undertake a detailed analysis of voluminous exhibits for which a pinpoint citation
13
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court to ponder a § 1404(a) motion for over a year and then, when it finally
rules on the motion, punish the moving party’s diligent litigation efforts
undertaken in the interim by relying on post-motion progress to hold that this
factor weighs against transfer. This is especially so where, as here, it appears
petitioners would have been subject to sanction for non-compliance with the
discovery process.
In sum, the district court committed a clear abuse of discretion by
delaying the resolution of petitioners’ § 1404(a) motion for nearly a year
without adequate explanation and then holding that the post-motion knowl-
edge acquired, and the judicial resources expended after the motion was filed,
weighed against transfer. The court also committed a clear abuse of discre-
tion in considering potential personal jurisdiction problems under this factor
because Defense Distributed held that hypothetical questions of jurisdiction
cannot tip this factor against transfer. See 30 F.4th at 435–36. Therefore,
this factor is—at most—neutral.
The administrative difficulties flowing from court congestion
The fifth factor considers “the administrative difficulties flowing
from court congestion.” Volkswagen, 545 F.3d at 315
. The focus is on “docket efficiency[,]” an issue we have recognized “the district court is better placed” to evaluate. Planned Parenthood,52 F.4th at 631
. This factor normally weighs against transfer when the “case appears to be timely pro- ceeding to trial before the” transferee district.Id.
The district court determined that this factor weighed against transfer
because the case was moving though discovery and proceeding quickly to
_____________________
was provided.” TikTok, 2023 U.S. Dist. LEXIS 63036
, at *7. In any event, the exhibits
were less than 2,000 pages, which—while lengthy—is not so extensive as to justify many
months of delay in ruling.
14
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trial, which the district court had set for April 2024. Petitioners contend that
the court abused its discretion by considering progress made after they filed
their § 1404(a) motion. Petitioners also contend that the time to trial is com-
parable in both districts. 12 Meishe responds that Planned Parenthood allows
for consideration of post-motion case progress by recognizing that factor five
normally weighs against transfer when the “case appears to be timely
proceeding to trial before the” transferee district. Id. But Meishe fails to
note that the petitioner in Planned Parenthood “inexcusably delayed” in filing
the § 1404(a) motion until “months into the discovery period.” Id. (internal
quotation marks omitted). Because the petitioner there had “inexcusably
delayed[,]” the district court was within its discretion to consider the prog-
ress the case had made as that motion was pending. See id.
But we have the exact opposite situation here: It was the district
court—not petitioners—that was responsible for the delay. If a court can
consider post-motion case progress when a party “inexcusably delay[s]” in
bringing its § 1404(a) motion, it follows that when a court “inexcusably
delay[s]” in ruling on a § 1404(a) motion, it cannot misuse this factor by
pointing to how close the case is to trial when the court finally rules. See id.
As we have explained in factor four, we can find no good reason why the
district court disregarded Horseshoe and took over a year to issue a final ruling
on petitioners’ motion.
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12
That contention is foreclosed by Planned Parenthood’s recognition that, as a gen-
eral matter, “the district court is better placed” to evaluate its “docket efficiency.”
52 F.4th at 631
. The district court believes it can try the case faster than can the Northern
District of California, given the extensive progress the case has made over the last year.
Petitioners have not shown that that determination was such an abuse of discretion as to
justify second-guessing a court’s view of its own docket. Therefore, this factor hinges on
whether the court abused its discretion by considering post-motion case progress in its
analysis.
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Therefore, the district court committed a clear abuse of discretion by
determining that this factor weighed against transfer based on case progress
made after petitioners filed their § 1404(a) motion. This factor was—at
most—neutral. 13
The local interest in having localized interests decided at home
The sixth factor considers “the local interest in having localized
interests decided at home.” Volkswagen, 545 F.3d at 315
. We look not to “the parties’ significant connections to each forum . . . but rather the signifi- cant connections between a particular venue and the events that gave rise to a suit.” Def. Distrib.,30 F.4th at 435
(internal quotation marks omitted). “Indeed, the place of the alleged wrong is one of the most important factors in venue determinations.”Id.
(cleaned up). Accordingly, “this factor weighs heavily in favor of transfer [when] . . . there is no relevant factual connection to the [transferor district].” Volkswagen, 545 F.3d at 317–18. Also, this factor can weigh against transfer when the “citizens of [the transferor district] have a greater stake in the litigation than the citizens of [the transferee district].” Planned Parenthood,52 F.4th at 632
.
The district court determined that this factor was neutral because the
critical conduct occurred in China, and the case primarily concerns the in-
fringement of Chinese copyrights and the misappropriation of Chinese trade
_____________________
13
A quick note is in order to emphasize the narrowness of our holding with respect
to factors four and five. We are presented with unusual circumstances. Petitioners filed
their § 1404(a) motion timely, yet the district court took no action on the motion for
months, with the record showing no adequate reason for the delay. Moreover, the court
failed to grant a stay, so the case proceeded through discovery for almost a year. When the
court finally ruled, it used the case progress its delay engendered as a reason for denying
transfer. If we were to hold that this is a proper exercise of discretion, a district court would
have absolute control over whether these two factors weighed in favor of transfer. Such a
result is inconsistent with the principles underlying § 1404(a) and not mandated by any of
our cases.
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secrets. Therefore, the district court could not say that the Northern District
of California had a greater local interest in this case than did the Western
District of Texas. Petitioners attack this holding by contending that the Nor-
thern District of California has a local interest in the dispute because many of
the engineers who implemented the video-editing functionality are based in
that district.
It is true that, as in Volkswagen, the transferor district has “no relevant
factual connection to the” dispute. Id. at 318. 14 Therefore, it would have
been error to hold that this factor weighed against transfer. But unlike in
Volkswagen, the potential transferee district has little local interest in this
dispute. Contra id. at 317–18 (noting that the entire event took place in the
transferee district). Meishe’s source code was allegedly misappropriated in
China by Chinese engineers. The implementation of that misappropriated
code into TikTok was the only relevant event that occurred in the Northern
District of California. The “event[] that gave rise to [the] suit” took place in
China. See Def. Distrib., 30 F.4th at 435
.
Therefore, neither the citizens of the Northern District of California
nor the citizens of the Western District of Texas can fairly be said to have a
strong interest in this dispute. See Planned Parenthood, 52 F.4th at 632
. Thus,
we cannot say that the district court committed a clear abuse of discretion in
concluding that this factor was neutral with respect to transfer.
The familiarity of the forum with the law that will govern the case
The seventh factor considers the current district’s “familiarity with
the law that will govern the case.” Volkswagen, 545 F.3d at 315
. This factor
_____________________
14
As discussed above, the district court abused its discretion by finding that peti-
tioners’ Austin employees have relevance to this dispute. The record is devoid of evidence
supporting that conclusion, and therefore the existence of the Austin employees cannot
bolster the holding on this factor.
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most “commonly applies where the destination venue is in a different
State—in which case that State’s familiarity with the applicable law would be
especially probative to the transfer analysis.” Planned Parenthood, 52 F.4th at 632
n.5. This means that we must look to the law the district court will be called on to apply, including whether the current district court “would be bound to [the transferee court’s] law concerning such claims.” Def. Distrib.,30 F.4th at 436
.
This factor does not weigh in favor of transfer when both districts are
“equally capable of applying the relevant law.” Radmax, 720 F.3d at 289
. We recognize that “[f]ederal judges routinely apply the law of a State” other than the one in which they sit” and have hesitated to find that this factor weighs in favor of transfer when there are no “exceptionally arcane features of Texas . . . law that are likely to defy comprehension by a federal judge sit- ting in [California].” Def. Distrib.,30 F.4th at 436
(cleaned up).
The district court held that this factor weighed against transfer
because some of Meishe’s claims were based on Texas law, and it “is better
equipped to handle [these claims].” TikTok, 2023 U.S. Dist. LEXIS 63036
, at *28. It also dismissed petitioners’ contention that California law would govern Meishe’s state law claims under Texas choice-of-law rules as “irrele- vant” and “pure speculation.”Id.
Those conclusions were error for two
reasons.
First, Defense Distributed does not allow the district court to dismiss
petitioners’ choice-of-law contention blithely. 30 F.4th at 436
. Because this
factor focuses on the governing law, courts must make a good-faith attempt
to ascertain which jurisdiction’s law will apply, even when the outcome of
that choice-of-law analysis is not entirely clear.
Second, even if Texas law unequivocally governed petitioners’ state-
law claims, that alone is not enough to hold that a Texas federal judge is better
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No. 23-50575
equipped to handle these claims. Defense Distributed requires something
more: There must be some “exceptionally arcane features of Texas . . . law
that are likely to defy comprehension by a federal judge sitting in [Califor-
nia].” Id.
(cleaned up). Neither the district court nor Meishe has offered any
explanation for why the Texas law governing Meishe’s state-law claims is so
“exceptionally arcane” that the judges of the Northern District of California
would be less equipped to handle these claims.
In short, the district court committed a clear abuse of discretion by
holding that this factor weighed against transfer without first attempting to
determine the governing law. Even accepting its conclusion that Texas law
applies, the court erred by assuming that it was more capable at applying
Texas law than are the judges of the Northern District of California when the
court identified no exceptionally arcane aspects of Texas law governing
Meishe’s state-law claims. This factor was, at most, neutral.
The avoidance of unnecessary problems of conflict of laws
The eighth factor focuses on “the avoidance of unnecessary problems
of conflict of laws [or in] the application of foreign law.” Volkswagen, 545 F.3d at 315
. Petitioners do not contest the district court’s determination that this
factor is neutral.
IV.
In summary, factors one and three weigh in favor of transfer. All other
factors are neutral with respect to transfer. A district court abuses its discre-
tion by denying a motion to transfer when “virtually all of the events and
witnesses regarding the case . . . are in the transferee forum.” Radmax,
720 F.3d at 290
; see also Volkswagen,545 F.3d at 318
(“The only connection
between this case and the [transferor forum] is plaintiffs’ choice to file
there.”). Here, as in Volkswagen, not a single factor weighs in favor of
refusing transfer. The Western District of Texas contains no relevant evi-
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No. 23-50575
dence, is thousands of miles away from the vast majority of relevant wit-
nesses, and is wholly unconnected to the underlying dispute. This case con-
cerns Chinese intellectual property that was allegedly infringed and misap-
propriated by employees located in China. The only individuals in the
United States who have any documented connection to this dispute are
located outside the district. The Northern District of California is a clearly
more convenient venue to adjudicate this case.
The only thing connecting this case to the Western District of Texas
is Meishe’s decision to file suit there. The district court’s decision to retain
this case and deny petitioners’ motion to transfer was a “clear abuse of dis-
cretion” leading to a “patently erroneous result.” Radmax, 720 F.3d at 287, 290
(cleaned up). Therefore, petitioners’ “right to issuance of the writ” is
“clear and indisputable.” Cheney, 542 U.S. at 380–81.
V.
The reader will recall that petitioners must establish three require-
ments to justify the issuance of the writ of mandamus. The entirety of the
opinion thus far has focused on the second requirement: Whether peti-
tioners’ right to the writ is clear and indisputable. We determined that it is.
The first “mandamus requirement [the lack of an appellate remedy] is satis-
fied in the motion-to-transfer context.” Radmax, 720 F.3d at 287
n.2.
Therefore, all that remains to decide is whether, “in the exercise of [our]
discretion[,]” we are “satisfied that the writ is appropriate under the circum-
stances.” Cheney, 542 U.S. at 380–81.
“[W]rits of mandamus are supervisory in nature and are particularly
appropriate when the issues also have an importance beyond the immediate
case.” Volkswagen, 545 F.3d at 319
. We have recognized that § 1404(a)
decisions often have “importance beyond the immediate case . . . [b]ecause
venue transfer decisions are rarely reviewed,” and “district courts have . . .
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applied [our] tests with too little regard for consistency of outcomes.” Id. In
the fifteen years since Volkswagen, we have issued fewer than ten precedential
opinions applying its test. This is despite the fact that district courts within
our circuit have been called on to apply Volkswagen in over 2,000 cases, and
the Federal Circuit—which is bound by our law when certain procedural
matters arise in patent cases—must review many of these decisions with little
guidance from our court. Indeed, in the last few months the Federal Circuit
has reached conflicting outcomes in reviewing mandamus petitions from the
Western District of Texas. 15 Therefore, granting mandamus in this case will
improve “consistency of outcomes” by further instructing when transfer
is—or, for that matter, is not—warranted in response to a § 1404(a) motion.
Therefore, the writ is appropriate under these circumstances, meaning peti-
tioners have satisfied all three requirements needed for the issuance of the
writ.
* * * * *
The petition for writ of mandamus, requiring transfer to the Northern
District of California, is GRANTED.
_____________________
15
Compare In re Microsoft Corp., No. 2023-128, 2023 U.S. App. LEXIS 14095
, at *6 (Fed. Cir. June 7, 2023) (per curiam) (granting mandamus) with In re Apple, Inc., No. 2023- 135,2023 U.S. App. LEXIS 21364
, at *5 (Fed. Cir. Aug. 16, 2023) (per curiam) (denying
mandamus).
21