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

United States District Court, D. Nevada

July 23, 2018

VOIP-PAL.COM, INC., Plaintiff,
v.
TWITTER, INC., Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the Court on Defendant Twitter, Inc. (“Defendant” or “Twitter”)'s Motion to Change Venue. (ECF No. 27). For the reasons stated below, this motion is granted.

         II. PROCEDURAL BACKGROUND

         On October 6, 2016, Plaintiff VoIP-Pal.com, Inc. (“Plaintiff” or “VoIP-Pal.com”) filed its Complaint against Defendant, alleging infringement of two patents. (ECF No. 1). On January 31, 2017, the Court entered a Stipulation to stay the case due to pending proceedings before the Patent Trial and Appeal Board (“PTAB”). (ECF No. 12). Pursuant to the Stipulation, the Court also directed the parties to file a Joint Status Report by January 26, 2018, outlining the parties' respective positions on how the case should proceed in light of the PTAB's final written decisions. The parties filed a Joint Status Report on January 26, 2018, requesting that the stay in the case be lifted. (ECF Nos. 13 & 14). On February 27, 2018, the Court lifted the stay and ordered the parties to submit a proposed pretrial order. (ECF No. 25).

         Defendant filed the instant Motion to Change Venue on February 28, 2018. (ECF No. 27). Plaintiff filed its Response on March 14, 2018. (ECF No. 31). On March 21, 2018, Defendant filed its Reply. (ECF No. 32). The Court held a hearing on the matter on July 6, 2018, and ordered Defendant to file a Supplemental Declaration to address whether Defendant has any physical equipment or leases any space in Nevada, including space for data storage, or other support equipment/hardware, within two weeks. This Order now follows.

         III. RELEVANT FACTUAL FINDINGS FOR JURISDICTION

         The Court finds the following facts. Plaintiff is a Nevada corporation, with its principal place of business located at 10900 NE 4th Street, Suite 2300, Bellevue, Washington 98004. Plaintiff is in the business of Voice-over-Internet Protocol (“VoIP”) technology, and owns a portfolio of VoIP-related patents and patent applications. Based on publicly available information, Plaintiff does not have any officers, directors, or employees based in Nevada. Plaintiff has no office, land, facilities, or sales in Nevada. All of the Plaintiff's patent inventors reside outside of the United States. Plaintiff's company does not generate income.

         On September 24, 2013, U.S. Patent No. 8, 542, 815 (“the ‘815 patent”) entitled “Producing Routing Messages for Voice Over IP Communications” was duly and legally issued with Clay Perreault, Steve Nicholson, Rod Thomson, Johan Emil Viktor Bjorsell, and Faud Arafa as the named inventors after full and fair examination. Plaintiff is the owner of all rights, title, and interest in and to the ‘815 patent and possesses all rights of recovery under the ‘815 patent. On November 3, 2015, U.S. Patent No. 9, 179, 005 (“the ‘005 patent”) entitled “Producing Routing Messages for Voice Over IP Communications” was duly and legally issued with Clay Perreault, Steve Nicholson, Rod Thomson, Johan Emil Viktor Bjorsell, and Faud Arafa as the named inventors after full and fair examination. Plaintiff is the owner of all rights, title, and interest in and to the ‘005 patent and possesses all rights of recovery under the ‘005 patent.

         In this lawsuit, Plaintiff alleges that Defendant violated the ‘815 and ‘005 patents by utilizing a caller dialer profile comprising a plurality of calling attributes to establish network classification criteria for routing communications such as calls and messages between callers/initiators and callees/recipients, which incorporates the patented technology. Plaintiff contends that the damages arising from this infringement amounts to $2, 699, 256, 418.

         Defendant is a Delaware corporation, with its principal place of business / headquarters at 1355 Market Street, Suite 900, San Francisco, California 94103. Defendant operates a global Internet platform for public self-expression and conversation that is free-of-charge and open for virtually anyone to use. Defendant's product design, development, implementation, and financial activities are centered in San Francisco. Of its 3, 490 employees, 1, 706 work out of the San Francisco headquarters, including 636 of its 938 software engineers. The San Francisco headquarters are also home to Defendant's key business teams, including non-technical personnel supporting product management, marketing, finance, and sales. VoIP-Pal's infringement allegations relate to what it refers to as Defendant's “messaging platform” (or the “Twitter System”). The accused technology is largely designed and built in San Francisco, and the bulk, if not all, of any relevant technical documentation, manuals, and product specifications, as well as all financial data relevant to revenue derived from Defendant's products, are located in San Francisco. Defendant does not own or lease any offices, buildings, or other facilities in Nevada, and does not directly or indirectly store any data in Nevada. It has no Nevada telephone number or local address listed on its website or in any directory. Defendant is a software company that has no physical product inventory, and its advertising and marketing are primarily conducted online. It does not store inventory or product literature in Nevada.

         Defendant has a single employee, a software engineer, that lives in Nevada. Given the nature of his work-which can be performed from anywhere in the world-this particular engineer chose to live in Nevada for personal reasons and works from home. He reports to a manager in San Francisco and uses San Francisco support staff. Defendant does not own his home or pay his rent. The decision to live in Nevada was the employee's alone; Defendant does not condition his employment on his location. He is free to move out of Nevada if he desires. If he were to leave Defendant's company or Nevada, Defendant would have no plans to hire another Nevada-based employee.

         IV. LEGAL STANDARD

         A. Motion to Change ...


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