Case: 21-177 Document: 19 Page: 1 Filed: 11/15/2021
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: ATLASSIAN CORP. PLC, ATLASSIAN, INC.,
Petitioners
______________________
2021-177
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:20-
cv-00805-ADA, Judge Alan D. Albright.
______________________
ON PETITION
______________________
Before DYK, PROST, and HUGHES, Circuit Judges.
PER CURIAM.
ORDER
Atlassian Corp. PLC and Atlassian, Inc. (collectively,
“Atlassian”) petition for a writ of mandamus directing the
United States District Court for the Western District of
Texas to transfer its case to the United States District
Court for the Northern District of California. Because the
district court’s refusal to transfer here amounted to a clear
abuse of discretion, we grant mandamus directing the dis-
trict court to transfer.
Case: 21-177 Document: 19 Page: 2 Filed: 11/15/2021
2 IN RE: ATLASSIAN CORP. PLC
I
In September 2020, Express Mobile, Inc. filed suit in
the federal district court in Waco, Texas, accusing three of
Atlassian’s software products—Jira, Confluence, and
Trello—of infringing several of Express Mobile’s patents.
Atlassian moved to transfer the case pursuant to
28 U.S.C. § 1404(a), arguing that the Northern District of
California was a more convenient forum. Atlassian alleged
that most of its knowledgeable employees work from Atlas-
sian’s offices in the Northern District of California; that
none of its employees who work in Austin, Texas possess
unique knowledge about the accused products; and that
key third-party witnesses could be compelled to testify in
the Northern District of California. In addition, Atlassian
noted that Express Mobile is based in the Northern District
of California and is before a judge in that district in several
suits involving the same patents.
After analyzing the private and public interest factors
that traditionally govern transfer determinations, the dis-
trict court denied Atlassian’s motion, finding that these
factors did not favor transfer to the Northern District of
California. In particular, the district court agreed that the
Northern District of California had a slight advantage as
the location of some sources of proof. But it found that the
Western District of Texas could likely adjudicate the case
faster. The district court determined that the remaining
factors were neutral. On balance, the district court con-
cluded that Atlassian did not show that the transferee
venue was clearly more convenient.
Atlassian then filed this petition. We have jurisdiction
under 28 U.S.C. §§ 1651 and 1295.
II
Under the well-established standard for obtaining
mandamus relief, the petitioner must: (1) show that it has
a clear and indisputable legal right; (2) show that it does
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IN RE: ATLASSIAN CORP. PLC 3
not have any other avenue to obtain relief; and (3) convince
the court that “the writ is appropriate under the circum-
stances.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380–81
(2004). For transfers under § 1404(a), this test “essentially
reduces to the first factor,” because “the possibility of an
appeal in the transferee forum following a final judgment
. . . is not an adequate alternative,” and “an erroneous
transfer may result in judicially sanctioned irreparable
procedural injury.” In re Apple Inc., 979 F.3d 1332, 1336–
37 (Fed. Cir. 2020) (quoting In re McGraw-Hill Glob. Educ.
Holdings LLC, 909 F.3d 48, 56 (3d Cir. 2018) and citing In
re TS Tech USA Corp., 551 F.3d 1315, 1322 (Fed. Cir.
2008)). Accordingly, the issue on appeal is whether Atlas-
sian has shown a clear and indisputable right to issuance
of the writ.
Motions to transfer are decided by weighing private
and public interest factors to compare the relative conven-
ience of the venues. The private interest 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.” In re Juniper Networks, Inc., 14 F.4th
1313, 1316–17 (Fed. Cir. 2021). The public interest factors
are “(1) the administrative difficulties flowing from court
congestion; (2) the local interest in having disputes regard-
ing activities occurring principally within a particular dis-
trict decided in that forum; (3) the familiarity of the forum
with the law that will govern the case; and (4) the avoid-
ance of unnecessary problems of conflict of laws or in the
application of foreign law.” Id. at 1317. We review transfer
determinations in cases arising on mandamus from district
courts in the Fifth Circuit for a clear abuse of discretion.
TS Tech, 551 F.3d at 1318–19.
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4 IN RE: ATLASSIAN CORP. PLC
First, the district court correctly found that the sources
of proof factor favors the Northern District of California be-
cause servers in the Northern District of California host
two of the accused products and copies of some relevant
source code, and neither party identified sources of proof
located in the Western District of Texas. While electronic
storage makes documents more widely accessible, this fac-
tor remains relevant. In re Volkswagen of Am., Inc., 545
F.3d 304, 316 (5th Cir. 2008) (en banc); see In re Radmax,
Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (“[T]he question is
relative ease of access, not absolute ease of access.”).
Second, the court erred in its assessment of the com-
pulsory process factor. Here, Atlassian identified three
prior art witnesses in the Northern District of California,
two of whom submitted declarations expressing a desire
not to travel to Waco, Texas. Atlassian also identified two
inventors and seven former executives, owners, and em-
ployees of Express Mobile in the transferee venue. Atlas-
sian explained the relevance of each witness’s testimony to
this litigation and noted that several of the witnesses had
also been subpoenaed in related litigation. Appx28–30. By
contrast, no party identified a potential non-party witness
in Texas. The court concluded that this factor was neutral
because “prior art witnesses . . . are unlikely to testify,” At-
lassian had failed to show that the other witnesses were
unwilling to testify, and the declarations only showed that
witnesses were unwilling to testify in Texas, not California.
Appx9–10.
We have disapproved of this reasoning in several cases.
See, e.g., In re Google LLC, No. 2021-170, 2021 WL
4427899, at *7 (Fed. Cir. Sept. 27, 2021); In re Hulu, LLC,
No. 2021-142, 2021 WL 3278194, at *3 (Fed. Cir. Aug. 2,
2021). As in those cases, the district court here improperly
substituted its own assumption that prior art witnesses are
unlikely to testify in place of specific reasons to believe that
the prior art witnesses would be relevant. See Google, 2021
WL 4427899, at *7. Such categorical rejection of those
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IN RE: ATLASSIAN CORP. PLC 5
witnesses entirely untethered to the facts of the particular
case is an abuse of discretion. Id.
Further, we have rejected the proposition that “the
compulsory process factor is irrelevant unless the wit-
nesses in question have expressly indicated an unwilling-
ness to testify voluntarily.” Id. (citation omitted). Instead,
“where, as here, the movant has identified multiple third-
party witnesses and shown that they are overwhelmingly
located within the subpoena power of only the transferee
venue, this factor favors transfer even without a showing
of unwillingness for each witness.” Hulu, 2021 WL
3278194, at *4. In addition, Atlassian’s declarations are
relevant to this factor because they show the Western Dis-
trict of Texas will be relatively inconvenient due to the un-
availability of compulsory process for two witnesses
unwilling to travel there. Because several relevant non-
party witnesses are located in the Northern District of Cal-
ifornia, none are located in the Western District of Texas,
and some are unwilling to travel to the Western District of
Texas, the district court erred in finding this factor neutral.
Third, the district court failed to give weight to the
comparative convenience of the Northern District of Cali-
fornia for potential willing witnesses. Seven of the ten em-
ployee witnesses Atlassian identified are in the Northern
District of California, including an engineering manager
with extensive knowledge of the accused Confluence soft-
ware functionality, Appx466–67, and the employee primar-
ily responsible for designing and developing significant
portions of the user-interface framework for Jira said to
have “extensive and unique knowledge about [the] specific
JIRA functionality,” Appx474–75. Atlassian also noted
that its employees in Seattle and Australia would all spend
significantly less time traveling to the Northern District of
California because there is no major airport in the Waco
Division of the Western District of Texas. Atlassian further
noted that the Northern District of California is home to
Express Mobile’s own potential party witnesses.
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6 IN RE: ATLASSIAN CORP. PLC
In finding this factor neutral, the court concluded that
Atlassian employees in Austin have at least the same
knowledge as its employees in Northern California.
Appx13–14. But that conclusion relied on a considerable
amount of conjecture and is not supported by the record.
While Atlassian employees in Austin may perform work re-
lated to the accused products, Atlassian provided evidence
showing its sole Texas employee on the engineering team
that works on Confluence is “not knowledgeable about the
accused functionalities,” Appx680–81, that “[t]here is no
development team or individuals who currently develop
[the accused] functionalities [for JIRA] in Texas,” Appx470,
and that “[n]o Atlassian employees located in Texas are re-
sponsible for developing the aspects of Trello that appear
to be implicated by Express Mobile’s allegations,” Appx472.
Beyond that, only Atlassian employees in Northern Cali-
fornia appear knowledgeable about marketing and finance.
Other than the court’s speculation based on Atlassian’s
statements that its Austin employees do not have unique
knowledge, there is no support for the conclusion that there
are equally qualified employees in both venues to testify.
The court also “assume[d] that no more than a few
party witnesses . . . will testify live at trial,” Appx11, and
stated “party witnesses are given minimal weight in this
analysis because their participation in litigation is almost
always to their benefit and compelling party witnesses is
always available internally,” Appx14. But we have held
that the fact that a witness is affiliated with a party “does
not negate the inconvenience and cost to those individuals
to travel a significant distance to testify.” Google, 2021 WL
4427899, at *4; see also Juniper, 14 F.4th at 1319. Further-
more, “[t]he [district] court’s assumption that [Atlassian]
would not call many party witnesses was not based on any
evidence specific to this case,” which we have repeatedly
explained is insufficient to weigh this factor against trans-
fer. Juniper, 14 F.4th at 1319 (collecting cases). Finally,
although the court was correct that “the convenience of
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IN RE: ATLASSIAN CORP. PLC 7
foreign corporations is generally given little weight,”
Appx14 (citing In re Genentech, Inc., 566 F.3d 1338, 1345
(Fed. Cir. 2009)), it is still relevant.
Fourth, the district court erred in its analysis of the lo-
cal interest factor. The district court acknowledged that at
least one of the accused software products was substan-
tially developed by engineers and managers who live in and
work from the Northern District of California. “That is suf-
ficient to give the transferee venue a greater localized in-
terest in the dispute, which favors transfer.” Juniper, 14
F.4th at 1319–20 (citing In re Samsung Elecs. Co., 2 F.4th
1371, 1380 (Fed. Cir. 2021) and In re Acer Am. Corp., 626
F.3d 1252, 1256 (Fed. Cir. 2010)). Moreover, Express Mo-
bile appears to be at home in that venue.
In concluding this factor was neutral, the court errone-
ously found that “Trello was significantly developed in the
[Western District of Texas].” Appx18. Atlassian submitted
a sworn declaration from the principal engineer responsi-
ble for writing the initial versions of the application, stat-
ing that “[n]o Atlassian employees located in Texas are
responsible for developing the aspects of Trello that appear
to be implicated by Express Mobile’s allegations.” Appx472.
And Express Mobile had argued only that Atlassian em-
ployees “work on Trello” from its Austin, Texas offices.
Appx494. Even if that is true, that does not create the same
“significant connections between” the Western District of
Texas and “the events that gave rise to [this] suit.” Apple,
979 F.3d at 1345 (emphasis omitted) (quoting Acer, 626
F.3d at 1256).
Fifth, the district court erred in weighing the practical
problems factor as neutral. Considerations of judicial econ-
omy are generally based on the situation at the time the
suit was filed. In re EMC Corp., 501 F. App’x 973, 976 (Fed.
Cir. 2013). Judicial economy arising from multiple lawsuits
filed on the same day in the same venue may be relevant,
id., but such co-pending suits are not to be over-weighed if
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8 IN RE: ATLASSIAN CORP. PLC
they are also the subject of motions to transfer. In re Google
Inc., No. 2017-107, 2017 WL 977038, at *2 (Fed. Cir. Feb.
23, 2017). Until Express Mobile filed this suit, only the
Northern District of California had been home to cases in-
volving the same asserted patents, breeding decisions and
familiarity with the issues. Moreover, as of the time the
district court denied Google’s motion, all of Express Mo-
bile’s co-pending actions in the Western District of Texas—
filed the same day as the Atlassian action—were subject to
a motion to transfer venue (three to the Northern District
of California and one to the Austin division of the Western
District of Texas). The district court itself has already
transferred two of them to the Northern District of Califor-
nia. This factor may not weigh heavily, see In re NetScout
Sys., Inc., No. 2021-173, 2021 WL 4771756, at *5 (Fed. Cir.
Oct. 13, 2021) (discounting co-pending lawsuits that in-
volve the same patents but different defendants and differ-
ent accused products), but any judicial economy
considerations in having one trial judge handle lawsuits in-
volving the same patents and technology do favor the
Northern District of California.
Finally, the court erred in weighing the court conges-
tion factor “heavily against transfer.” Appx18. The district
court here based its finding as to the court congestion factor
on data showing a modestly faster time to trial in its patent
cases compared to the average time to trial in the Northern
District of California, and the fact that it has continued to
hold jury trials in the Western District of Texas during the
COVID-19 pandemic. Appx17–18.
The district court did not justify its heavy weighing of
this factor. We have held that when other relevant factors
weigh in favor of transfer or are neutral, “then the speed of
the transferee district court should not alone outweigh all
of those other factors.” Genentech, Inc., 566 F.3d at 1347.
And where, as here, the district court has relied only on
time to trial to support its conclusion as to court congestion,
we have characterized this factor as “speculative.” Id.
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IN RE: ATLASSIAN CORP. PLC 9
(citation omitted); see also Apple, 979 F.3d at 1344 n.5.
However, the time to trial statistics provided in this case,
unsupported by additional facts such as the number of
cases per judge and the speed and availability of other case
dispositions, cannot alone weigh “heavily against transfer.”
This factor is plainly insufficient to warrant keeping this
case in the Texas forum given the striking imbalance fa-
voring transfer based on the other convenience factors.
In sum, the center of gravity of this action is squarely
in the transferee district, and decidedly not in the Western
District of Texas. Several of the most important factors
bearing on the transfer decision favor transferring the
case, and no factor strongly favors retaining the case in the
Western District of Texas. The district court clearly abused
its discretion in denying the motion to transfer. We there-
fore grant Atlassian’s petition seeking transfer of the case
to the Northern District of California.
Accordingly,
IT IS ORDERED THAT:
The petition is granted. The district court’s order deny-
ing Atlassian’s motion to transfer is vacated, and the dis-
trict court is directed to grant the transfer motion.
FOR THE COURT
November 15, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
s24