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Nice job I say to myself. Thanks sellers.
Going back in at 13c for 50k more. Buy any dips. Will run to 50c and beyond, way beyond.
Prediction for today...don't care. Prediction for a month from now, $2+. Nuff said.
Cannot believe anybody would actually sell today, especially that one idiot that took it back down from 11c to 8c and bailed. He's got to be killing himself and wait till he sees the chart a month from now. This is one of those opportunities you hear about where some guys made millions on a no name stock by getting in early and holding instead of trading it. You see the chart and it nakes you sick. It goes from 2 or 3c to $5 over 2-3 months, or maybe even quicker. You can't blow these. Just put your shares in a drawer and come back in 2 months.
Wow. The BOD has a fiduciary responsibility to represent the best interests of the company. What clue do you have that Dave has anything else besides that in mind? He's fighting the very curruption that you are implying! That's what he's been doing from Day 1!! Unbelievable.
OMG. You are so out of touch with reality. None of the people on the BOD were involved with Daic and the other crooks. Pattin has been dismissed. The BOD is clean and is winning the battle AGAINST Daic and the other crooks. And now they've grought T-Mobile to the table. This is the best position Calypso has been in EVER. They are negotiating with one of the largest carriers in the business. And how exaclty do the BOD members get rich? They own stock just like the rest of us. If they get rich, we do too. Man get a clue or go away.
Don't you just know Daic is speed dialing the BOD right now saying, hey it was just all a misunderstanding right? Why don't we settle this out of court? Can I pleeeeeease keep my shares?
Only thing he hears is a click and a dial tone.
MMs trying to walk it down. Went from 11.9 at 12.4 down to 10.7 at 10.8 on zero volume. Just the MMs lowering the b/a. It's a pink sheet so they can do what they want and they obviously want some more shares.
I told you, shut off the computer and come back in 3 months. It will be printing $3 at least and you will be a millionare.
You're reading a pink sheet stock chart? Really? Pink sheets move on news, not charts. With that logic you would have sold on the last run up at 10c and missed the next 40c. LOL
Some idiot sold it down to 8c. At least he's out of the way now.
Again, I'm not selling one single share.
Some people just can't resist making a couple of cents when they can wait a little longer for dollars. So go ahead and bail. If it dips much at all, I'll be a buyer again. Patience yields profits.
Again, I'm not selling anywhere near these prices, as good as they look right now, I know better. Best thing is to turn the computer off and come back in 2-3 months.
A new era for CLYW is all but guaranteed. Think about it. The fact that T-Mobile agreed to stay the case for negotiations means that the worst case scenario is that T-Mobile takes a non-exclusive license. That in itself is a Major deal and the stock would trade north of 50c on that alone. I figure a cheap license would be on the order of $10 million a year in revenues which might be $7 million in earnings over 200 million shares would be 3.5c per share. Licensing companies trade at maybe a 20 to 40 P/E, so use 20 and you get 70c/share.
If they take and Exclusive license, you are talking many multiples of that. Maybe $5/share.
A partnership would be north of that.
If I were T-Mobile, I'd be looking to buy out CLYW and if I were CLYW, I'd take nothing short of $5.
Guessing there will be an 8k about this. That will get on people's radars later this week.
Got some more today and not selling. Have sold too soon too many times. It's easy to sell on a day like this, but you end up taking pennies instead of dollars, and in this case I think that's literal.
This is the hint at something bigger than a license..."These communications are ongoing and representatives from Calypso and T-Mobile expect to schedule a meeting promptly to explore further potential business arrangements involving the patent-in-suit."
Calypso will get a licence from T-Mobile. The amount isn't as important as just the fect that T-Mobile took a license. When that happens, it will set precedent and every other infringer out there will fall like dominos. The other possibility is that T-Mobile takes an EXCLUSIVE license within a partnership type arrangement. They would do that to exclude their competition from using ASNAP and that would hurt the competition greatly. An Exclusive license would be very expensive give Calypso would be giving up any other future licenses, but might be worth $$$ to Calypso. The filing hints at that. The other possibility is for T-Mobile to out-right buy Calypso.
Stay has been granted by the Judge:
Case 2:08-cv-00441-TJW-CE Document 169 Filed 09/22/10 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., §
DRAGO DAIC, §
JIMMY WILLIAMSON P.C. §
§
Plaintiffs, §
§ Case No. 2:08-CV-00441
v. §
§ Jury Demanded
T-MOBILE USA, INC. §
§
Defendant. §
ORDER ON UNOPPOSED MOTION TO EXTEND TIME TO FILE
PLAINTIFFS’ OPENING CLAIM CONSTRUCTION BRIEF PURSUANT TO
L.P.R. 4-5(a)
After consideration of Plaintiff’s Unopposed Motion to Extend Time to File Plaintiffs’ Opening Claim Construction Brief Pursuant to Local Patent Rule 4-5(a), the Court is of the opinion and finds that the motion should be GRANTED.
It is ORDERED that Plaintiffs’ Opening Claim Construction Brief Pursuant to Local Patent Rule 4-5(a), previously due on September 23, 2010, is now due on September 30, 2010.
New Motion just filed today saying case will be stayed for 90 days and that all parties believe they will settle.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., DRAGO DAIC & JIMMY WILLIAMSON, PC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC., Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE Jury Trial Demanded
EMERGENCY JOINT UNOPPOSED MOTION TO STAY THE CASE FOR 90 DAYS
Plaintiff Calypso Wireless, Inc. (“Calypso”) and Defendant T-Mobile USA, Inc. (“T-Mobile”), by and through their respective attorneys, respectfully submit this Emergency Joint Unopposed Motion to Stay the Case for 90-Days. Due to impending Markman deadlines, (D.I. 132), the parties will incur significant expenses in litigating this case over the next three months. At the same time, a trial currently scheduled for November in state court will resolve the ownership dispute between the Plaintiffs over the patent-in-suit. The movants believe in good faith that a 90-day stay will permit them to resolve this case fully without further litigation, and accordingly respectfully request that the Court grant this motion for a 90-day stay, showing as follows:
Plaintiff Calypso filed this action for patent infringement against T-Mobile on November 13, 2008. (D.I. 1). The Court is already familiar with the ownership dispute over the patent-in-suit that ultimately led to joining Drago Daic and Jimmy Williamson, P.C. as plaintiffs from the parties’ prior motions and other filings. (See, e.g., D.I. 14, 36, 57, 67, 88, 89, 90, 106, 118).
The Plaintiffs are currently litigating their ownership dispute in state court in Harris County, Texas. (D.I. 111 ¶ 5). That case is scheduled to go to trial on November 15, 2010. (Ex. A (Docket)).
Under the terms of the Stipulation into which the Plaintiffs entered as part of their agreement to litigate the ownership dispute in state court, Calypso is “the party responsible for management” of this litigation “in accordance with the terms and provisions of the 2008 Agreement.” (D.I. 111 ¶ 8). Calypso has limited financial resources to litigate this case. See Ex. B (6/8/10 SEC filing). Calypso presently has the authority to license or otherwise transfer rights under the patent-in-suit to T-Mobile, subject to the provisions of the agreement between the Plaintiffs and any orders arising from the State Court Litigation. (D.I. 111 ¶¶ 7, 3 & D.I. 110-2 (Ex. B ¶ 4(a)).
In an effort to resolve this action for patent infringement without incurring significant further costs, Calypso has directly contacted executives from T-Mobile in order to engage them in negotiations regarding a potential license or other transfer of rights to the patent-in-suit, which would effectively resolve this litigation. These communications are ongoing and representatives from Calypso and T-Mobile expect to schedule a meeting promptly to explore further potential business arrangements involving the patent-in-suit. T-Mobile also agreed not to oppose Plaintiffs’ motion to extend the time to file their claim construction brief, (D.I. 168), so that settlement could be furthered and this motion for a stay filed.
At the same time, the Plaintiffs’ ownership rights to the patent-in-suit are due to be resolved in state court in November of 2010. The movants believe in good faith that discussions currently taking place between Calypso and T-Mobile, and the pending resolution of the ownership dispute in Texas state court, will permit them to resolve fully all claims and counterclaims in this action for patent infringement without further litigation.
T-Mobile joins this motion without prejudice to its pending Objections to and Motion for Reconsideration of the March 31, 2010 Order of Magistrate Judge Everingham Denying Motion to Transfer Venue to the Western District of Washington, (D.I. 150), its Motion to Strike Plaintiffs’ Answer to T-Mobile’s Counterclaims, (D.I. 58), and its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to Prosecute, (D.I. 109). September 22, 2010 Respectfully submitted,
/s/__Anthony Miller__________ Paul V. Storm (lead counsel) State Bar. No. 19325350 Anthony P. Miller State Bar No. 24041484 Michael Leach State Bar No. 24065598
STORM LLP
Why cant I see a bid?
Why can't I see the bid? I only see the ask, and then it prints above it which is confusing.
Well the fact that they sold the terminal tells me they indeed have some sales lined up, but I wish they would announce them, or at least announce that they have secured some contracts.
My frustration is no actual deals have been announced. Been hearing how well field trials went etc but no actual deals. When are actual deals going to get done?
hey that's sweet! here we go..
How come we dont have a bid/ask?
Yo! Like the PR from this company. Sounds like EKO-FLOR is a lock now. I'm in for some today and will keep buying on any dips. cheers.
ok, would be great if you could add that capability. Seems like it would be easy to do.
Daic filings in state court. links to the filings on a hosting site.
The main filing is here: http://freepdfhosting.com/0a557452ae.pdf
and the attachments are here: http://freepdfhosting.com/9fde478252.pdf
Ok, one more time and I'll give up. Is there a way to have the system look for stocks that drop 20c in under 20 seconds and as soon as they do that, alert me? The system would watch a rolling 20 second interval and if any stock drooped 20c over that interval, it would send me an immediate alert.
manually
US
thanks. unfortunately, the timing is what I want to change.
no, I don't mind at all. I use 20c on the running down alert. I use a filter for $40 max price. A filter for -$.50 for max up from the close so it only looks at stocks that are at least down 50c on the day. I use a filter of 50,000 shares traded minimum on the day. That's it.
The strategy is very simple. I just look for stocks thsat have fallen 20c or more using running down now. But that alert uses a time period of 1 minute, so it alerts me if a stock falls 20c over the last minute. What I want is an alert if a stock falls 20c over maybe 20 seconds.
I don't want an alternative way. I have the way i want, it's just not fast enough because Scottrade built it using a 1 minute time frame. My question again is, is there a way to somehow get that 1 minute down to something quicker using running down now.
Sorry, I am already using the Running Down Now alert. Again, by the time I get the alert, the stock has already bounced back significantly.
If you can suggest a fix, I'd appreciate it.
I use the "running down" alert in Trade Ideas but it waits for 1 minute until sending the alert. I need some quicker, like 10-15 seconds. How do I do that?
Amended complaint pursuant to the Daic et al stipulation. Kelly Stephens removed as a defendant and restraining order requests removed because Daic et al parties agreement to await resolution of the matters in State Court. Overall language has been changed somewhat also.
==========================
Filed 10 April 5 P4:24 Loren Jackson - District Clerk Harris County ED101J015730977 By: Velina Brooks
CAUSE NO. 2010-02545
CALYPSO WIRELESS, INC. § IN THE DISTRICT COURT OF
§ Plaintiff § §
v. § HARRIS COUNTY TEXAS
§ DRAGO DAIC and § JIMMY WILLIAMSON, P.C. §
§ Defendants § 333RD JUDICIAL DISTRICT
PLAINTIFF’S FIRST AMENDED PETITION
Comes now Plaintiff Calypso Wireless, Inc. (?Calypso?), filing this First Amended Petition, and would show the Court the following:
I. Discovery Level
1. Calypso plans to conduct discovery under Level 2, as set out in Rule 190 of the Texas Rules of Civil Procedure.
II. Parties
Calypso is a Delaware corporation with its principal place of business in Montgomery County, Texas.
Defendant Drago Daic is an individual, who is a citizen of the State of Texas, residing in Harris County, Texas. Daic may be served at his principal place of business located at 14405 Walters Road, Suite 800, Houston, TX 77014.
Defendant Jimmy Williamson, P.C. is a professional corporation with its principal place of business at 4310 Yoakum Blvd., Houston, Texas 77006. Williamson may be served at this address.
III. Jurisdiction
5. This court has jurisdiction over the lawsuit because the amount in controversy
exceeds this court‘s minimum jurisdictional requirements.
IV. Facts
Calypso was founded in 1998, and has, from its inception, been a pioneer in the field of wireless communications. Calypso‘s ground-breaking innovations include the ASNAP technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such Wi-Fi routers. Calypso‘s ASNAP technology is protected by a portfolio of patents, which includes U.S. Patent No. 6,680,923 B1, entitled ?Communication System And Method? (?the =923 patent?).
Calypso is the owner of the Calypso IP, which comprises any and all patents and other intellectual property rights including and related to the ‘923 Patent, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482, as set out in the 2008 Agreement, which is attached as Exhibit 1 (the ?2008 Agreement?) to this Petition, and incorporated herein by reference.
On January 20, 2004, the =923 Patent was duly and legally issued to inventor Robert Leon. Calypso is the owner by assignment of the =923 patent.
9. Defendants Drago Daic and Jimmy Williamson, P.C. are shareholders and
creditors of Calypso. Each is an owner by assignment of certain ownership rights in the =923
patent.
10. Calypso has, in the last couple of years, undergone significant changes in leadership, including the replacement of Calypso‘s president and CEO, and several members of Calypso‘s board of directors. Prior to April 2008, the company was run by an individual named
Carlos Mendoza. Mr. Mendoza is no longer with the company.
11. In 2002, the owner and principal of Calypso – Carlos Mendoza – allegedly entered into one or more agreements with Drago Daic, under which Mr. Daic would provide ?consulting? services in exchange for shares of Calypso stock. In 2004, Mr. Daic sued Calypso for non-delivery of the shares. Mr. Mendoza appeared in the suit, but did little more than that (Mr. Mendoza apparently explained that Daic had threatened him if he testified), and ultimately Mr. Daic and his attorney Jimmy Williamson were able to conduct a very brief trial without anyone from Calypso in the courtroom.
The trial lasted ?in the nature of an hour,? during which the only witnesses were Mr. Daic and Mr. Williamson. Although the ?consulting? that Mr. Daic performed never amounted to anything — the =923 Patent had already been applied for and Mr. Daic brought in no new investments — the trial court awarded damages in excess of $85 Million, plus attorney‘s fees of over $30 Million (reasoning, contrary to well-established precedent, that it should add a contingency award on top of the damages award). The damages award was based on a peak share price — on one day, two years before the suit was filed — of $6.05 (the stock actually closed at $4.70 that day). On the day the judgment was entered, the shares were actually only worth $.05, and the average share price for the entire period that Calypso has been a public company is only fifty-two cents ($.52).
In this way, Drago Daic and Jimmy Williamson secured well over $100 Million worth of leverage that they have used repeatedly in the intervening years to extract an ever-increasing number of shares and payments from Calypso. Under the threat of Daic‘s execution of the $100+ Million judgment, Calypso entered into the 2008 Agreement, pursuant to which, among other things, Daic and Williamson took a security interest in the =923 Patent in the form of a 25% ownership stake in the patent.
14. The 25% security interest granted in the 2008 Agreement covered two categories
of intellectual property: the ?ASNAP Patents? and the ?Baxter Patents.?
Drago Daic did not comply with his obligations under the 2008 Agreement. He made every effort, in violation of his obligations under the 2008 Agreement, to interfere with the day-to-day operations of Calypso, as well as various arrangements and agreements that Calypso attempted to enter into.
Daic further prevented Calypso from securing investments or licenses that would have enabled Calypso to obtain the funding necessary to pay him off, and vetoed any attempt by Calypso to issue the stock shares necessary to comply with the provisions in the 2008 Agreement
that required Calypso to deliver to him millions of new shares from among its ?authorized and unissued shares.? He accomplished this by, among other things, putting his wife, Kathy Daic, on the Calypso board of directors and threatening to use his (and Mr. Williamson‘s) substantial number of Calypso shares to veto any actions that Calypso might have taken at a shareholder meeting. Daic also insisted that Calypso sue T-Mobile, but then initially refused to join in as
plaintiff in the present suit for infringement of the =923 Patent. As part (25%) owner of the =923
Patent, Daic was a necessary party to the suit.
17. In early 2008, a group of Calypso shareholders bought out Mendoza. Mendoza is no longer associated with Calypso and has apparently returned to Latin America. All of
Calypso‘s previous officers and directors resigned, and Richard Pattin was named interim
President, CEO, and sole director. In April 2008, under new leadership, Calypso set about trying to clean up the mess created by Mendoza and Daic. (It was not until June 2009, however, after the return of Cristian Turrini and Dave William‘s appointment as President of the company, that Calypso was able to limit Daic‘s interference with the day-to-day affairs of the company.)
In the spring of 2009, Daic and Williamson complained that Calypso had breached the 2008 Agreement by, among other things, failing to consummate the deals or bring in investors – things he himself had prevented. Daic threatened to enforce his $100+ Million default judgment, to take the =923 Patent away from Calypso, along with the other patents in Calypso‘s ASNAP portfolio, and to refuse to cooperate in the suit against T-Mobile USA, Inc. for patent infringement.
Calypso seeks declaratory judgment, under Chapter 37 of the Texas Civil Practice and Remedies Code, that Calypso is the sole title holder of the Calypso IP
Calypso also seeks a preliminary and permanent injunction to prevent any further attempts by Daic and Stephens to exercise or act upon Daic‘s and Williamson‘s alleged rights with respect to or interests in the Calypso IP, and to prevent Daic from continuing to breach the terms of the 2008 Agreement.
Calypso also seeks damages and attorney‘s fees relating to Daic and Williamson‘s breaches of the 2008 Agreement.
Calypso also seeks damages for Daic and Williamson‘s tortuous interference with Calypso‘s business relationships and prospective contracts.
V. Request for Permanent Injunction
23. Calypso asks the court to set its application for permanent injunction for a full trial on the merits and, after the trial, issue a permanent injunction against defendant.
VI. Causes of Action
A. Declaratory Judgment as to Calypso’s Intellectual Property
Calypso repeats and re-alleges the allegations of paragraphs 1 through 23 above as if fully set forth herein.
Calypso seeks declaratory judgment, under Chapter 37 of the Texas Civil Practice and Remedies Code, that Calypso is the sole title holder of the Calypso IP.
As described above, an actual controversy exists as to Daic‘s and Williamson‘s, rights vis-à-vis the Calypso IP. This controversy is ripe for adjudication by this Court.
Because, as described above, Daic and Williamson breached the 2008 Agreement and are therefore not entitled to claim damages or relief for any alleged breaches thereof by Calypso, Daic and Williamson‘s claims to Calypso‘s intellectual property are baseless.
Unless and until enjoined by this Court, Daic and Williamson may continue to attempt to assert their alleged rights to the Calypso IP, causing Calypso irreparable harm.
Calypso is therefore entitled to a declaration that Calypso is the title holder of an undivided interest in the Calypso IP, and permanent injunctive relief to prevent Daic and Williamson from continuing to assert their alleged rights to the Calypso IP.
Calypso is also entitled to permanent injunctive relief against Daic and Williamson to prevent them from taking further steps to harm Calypso‘s rights and interests in the Calypso IP.
B. Breach of Contract of the 2008 Agreement
Calypso repeats and re-alleges the allegations of paragraphs 1 through 30 above as if fully set forth herein.
The 2008 Settlement Agreement constitutes a valid contract expressing the agreement of Daic and Calypso to be bound to perform under an agreement for consideration.
Daic and Williamson breached the terms of the 2008 Settlement Agreement by, among other things, interfering with and preventing Calypso from entering into arrangements
and agreements with other companies to exploit Calypso‘s intellectual property rights in the
ASNAP technology. Daic further breached the 2008 Agreement by refusing to take required steps or to cooperate with the prosecution of the T-Mobile Litigation.
Calypso suffered damages directly and proximately caused by Daic and Williamson‘s breach of the 2008 Settlement Agreement stemming from the cloud of title with respect to the Calypso IP, as well as other damages associated with Daic‘s breach.
Calypso has incurred significant attorney‘s fees in dealing with the consequences of Daic and Williamson‘s breaches, and in bringing these claims against Daic and Williamson.
Unless and until enjoined by this Court, Daic and Williamson will continue to breach the 2008 Agreement, causing Calypso irreparable harm.
37. Calypso is therefore entitled to damages and attorney‘s fees (under at least TEX.
CIV. PRAC. & REM. CODE § 38.001 et seq.) relating to Daic and Williamson‘s breach of the 2008 Agreement, as well as permanent injunctive relief to prevent Daic and Williamson from continuing to breach the 2008 Agreement.
C. Tortious Interference with Prospective Contracts
Calypso repeats and re-alleges the allegations of paragraphs 1 through 37 above as if fully set forth herein.
Daic and Williamson were strangers to third party negotiations between Calypso and other companies, including financial institutions and third-party companies such as Acacia Patent Acquisition Corporation (?APAC?). Daic and Williamson knew or learned that the formation of contracts with each of these entities was reasonably probable. Daic and Williamson
were also aware of Calypso‘s continuing business relationships with these entities.
Daic and Williamson intentionally interfered with these business relationships and incipient contracts, thereby preventing the continuation of such business relationships, the formation of such contracts, and proximately damaging Calypso.
Daic and Williamson‘s actions were tortious and illegal for a variety of reasons, including that they were fraudulent, deceptive, disparaging, and larcenous.
Calypso suffered damages as a result of Daic and Williamson‘s tortious interference.
43. Unless and until enjoined by this Court, Daic and Williamson will continue to
interfere tortiously with Calypso‘s business relationships, existing contracts, and prospective
contracts, causing Calypso irreparable harm.
44. Calypso is therefore entitled to damages relating to Daic and Williamson‘s tortious interference, as well as permanent injunctive relief to prevent Daic and Williamson from
continuing to interfere with Calypso‘s business relationships and prospective contracts.
VII. Conditions Precedent
45. All conditions precedent have been performed or have occurred.
VIII. Jury Demand
46. Calypso demands a trial by jury and tenders the appropriate fee with this petition.
IX. Attorney’s Fees
47. Calypso is entitled to an award of attorneys fees and costs under TEX. CIV. PRAC. & REM. CODE §§ 37.009 and 38.001 et. seq.
X. Request for Disclosure
48. Under Rule 194 of the Texas Rules of Civil Procedure, Calypso requests that defendant disclose, within 50 days of this service of this request, the information or material described in Rule 194.2.
XI. Prayer
49. Calypso respectfully prays for the following relief:
a. A declaration that Calypso is the title holder of an undivided interest in the Calypso IP;
b. Damages relating to Daic and Williamson‘s breach of the 2008 Agreement;
c. Damages relating to Daic and Williamson‘s tortious interference;
d. Permanent injunctive relief to prevent Daic and Williamson from continuing to breach the 2008 Agreement;
e. Permanent injunctive relief to prevent Daic and Williamson from continuing to assert their alleged rights to the Calypso IP;
f. Permanent injunctive relief against Daic and Williamson to prevent them from taking further steps to harm Calypso‘s rights and interests in the Calypso IP;
g. Permanent injunctive relief to prevent Daic and Williamson from continuing to interfere with Calypso‘s business relationships and prospective contracts;
h. Attorney‘s fees;
i. All costs of court; and
j. Any such other relief that this Court deems just and proper.
Dated: April 5, 2010
Respectfully submitted,
STORM LLP
/s/ Anthony Miller Paul V. Storm (lead counsel) paulstorm@stormllp.com State Bar No. 19325350 Anthony P. Miller amiller@stormllp.com State Bar No. 24041484 Michael Leach mleach@stormllp.com State Bar No. 24065598
901 Main Street, Suite 7100 Phone: 214-347-4700 Fax: 214-347-4799
-and
WYNNE & WYNNE LLP
David E. Wynne Texas Bar No. 24047150 711 Louisiana Street, Suite 2010 Pennzoil Place, South Tower Houston, Texas 77002 713-227-8835 (Telephone) 713-227-6205 (Facsimile) dwynne@wynne-law.com (e-mail)
CERTIFICATE OF SERVICE
I hereby certify that on April 5, 2010, I caused a true and correct copy of the foregoing to be served via facsimile on all counsel of record, pursuant to the Court‘s Local Rules.
Tim Johnson Matthews, Lawson, Johnson
& Payne, P.L.L.C. 2000 Bering Drive, Suite 700 Houston, Texas 77057
/s/ Anthony Miller Anthony Miller
T-mobile request for venue change denied.
===================================
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. AND §
DRAGO DAIC §
§
vs. § CASE NO. 2:08-CV-441-TJW-CE
§
T-MOBILE USA, INC. §
ORDER
I. Introduction
Before the court is the defendant T-Mobile USA, Inc.’s (“T-Mobile”) motion to transfer venue (Dkt. No. 17). The court, having considered the venue motion and the arguments of counsel, DENIES the motion to transfer venue to the United States District Court for the Western District of Washington pursuant to 28 U.S.C. § 1404(a). The balance of the private and public factors does not demonstrate that the transferee venue is “clearly more convenient” than the venue chosen by the plaintiff. See In re Volkswagen of Am., Inc. (Volkswagen III), 566 F.3d 1349 (Fed. Cir. 2009); In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009); In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008); In re Volkswagen of Am., Inc. (Volkswagen II), 545 F.3d 304 (5th Cir. 2008) (en banc) (emphasis added).
II. Factual and Procedural Background
The plaintiff Calypso Wireless, Inc. (“Calypso”) is a Delaware corporation and has its principal place of business in Montgomery County, Texas. The plaintiff Drago Daic is a citizen of Texas and resides in Harris County, Texas. The crossclaimant Jimmy Williamson, P.C. is a Texas professional corporation and has its principal place of business in Houston, Texas. TMobile is a Delaware corporation and has its principal place of business in Bellevue, Washington.
On November 13, 2008, Calypso filed its complaint in the Eastern District of Texas against T-Mobile and alleged infringement of U.S. Patent No. 6,680,923 B1 (“the ‘923 patent”). The plaintiff Drago Daic, who allegedly owns certain rights to the ‘923 patent, was added as a co-plaintiff on March 16, 2009. On May 29, 2009, T-Mobile filed the motion to transfer under consideration.
Around September 2009, a long-running dispute over ownership of the ‘923 patent resurfaced and has taken center stage in this lawsuit. There are past1 and pending2 Texas state court lawsuits regarding ownership of the patent, as well as two settlement agreements (“2008 Settlement Agreement” and “2009 Settlement Agreement”), both of which are contested. Calypso filed an amended complaint on January 25, 2010 that sought a declaratory judgment against Jimmy Williamson, P.C. with respect to ownership of the ‘923 patent. Jimmy Williamson, P.C. answered and filed a crossclaim for patent infringement against T-Mobile. On February 8, 2010, Calypso, Mr. Daic, and Jimmy Williamson, P.C. filed a stipulation that purportedly sets aside their ownership disputes in this lawsuit; however, the pending state court proceeding is ongoing. Calypso dismissed its claims against Jimmy Williamson, P.C. without prejudice on March 30, 2010.
1
Daic v. Calypso Wireless, Inc., No. 63048 (151st Dist. Ct., Harris County, Tex. 2004).
2
Calypso Wireless, Inc. v. Daic, No. 02545 (333rd Dist. Ct., Harris County, Tex. 2010).
III. Analysis
A. Applicable Law Regarding Motions to Transfer
“For the convenience of parties, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). The Fifth and Federal Circuits have enunciated the standard to be used in deciding motions to transfer venue. See Volkswagen III, 566 F.3d 1349; In re Genentech., 566 F.3d 1338; In re TS Tech USA Corp., 551 F.3d 1315 (applying the Fifth Circuit’s en banc Volkswagen II decision to rulings on transfer motions out of this circuit); Volkswagen II, 545 F.3d 304. The moving party must show “good cause,” and this burden is satisfied “when the movant demonstrates that the transferee venue is clearly more convenient.” Volkswagen II, 545 F.3d at 314.
The initial threshold question is whether the suit could have been brought in the proposed transferee district. In re Volkswagen AG (Volkswagen I), 371 F.3d 201, 203 (5th Cir. 2004). If the transferee district is a proper venue, then the court must weigh the relative conveniences of the current district against the transferee district. In making the convenience determination, the Fifth Circuit considers several private and public interest factors, none of which are given dispositive weight. Id. “The private interest factors are: ‘(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; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.’” Volkswagen II, 545 F.3d at 315 (quoting Volkswagen I, 371 F.3d at 203). “The public interest factors are: ‘(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (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 [in] the application of foreign law.’” Id. (quoting Volkswagen I, 371 F.3d at 203).
B. Proper Venue
As a threshold matter, the court must determine if venue is proper in the Western District of Washington. Venue requirements are satisfied in patent infringement cases “where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b). T-Mobile’s principal place of business is located in the Western District of Washington, and it sells allegedly infringing products there, so venue is proper in that district.
C. Private Interest Factors
1. Relative Ease of Access to Sources of Proof
The relative ease of access to sources of proof is the first factor to consider. “That access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous.” Volkswagen II, 545 F.3d at 316. Calypso, Mr. Daic, and Jimmy Williamson, P.C. are all located in or near Houston, Texas. Calypso and Mr. Daic have stipulated that all of their documents are located in Texas. Mr. Daic claims that T-Mobile’s partner, Radio Shack, may have relevant evidence in Fort Worth, Texas. Both the inventor and the firm that prosecuted the ‘923 patent are located in Florida. T-Mobile’s documents and physical evidence are located in Washington. No sources of proof appear to be in the Eastern District of Texas.
The court finds that this factor weighs slightly against transfer. Transfer to the Western District of Washington would provide much easier access to the defendant’s physical evidence. In contrast, the Eastern District of Texas is much closer to the plaintiffs’ and the crossclaimant’s physical evidence. In general, the ease of accessing the defendant’s sources of proof weighs more heavily than the ease of plaintiff’s proof, because the majority of relevant evidence in patent infringement suits usually comes from the accused infringers. In re Genentech, 566 F.3d at 1345. In this case, however, ownership of the ‘923 patent remains a contested issue; thus access to Calypso’s, Mr. Daic’s, and Jimmy Williamson, P.C.’s documentation and state court filings and orders will be relatively important. Furthermore, access to the inventor’s and prosecution firm’s documentation is easier from this district than the proposed transferee district.
Because the sources of proof are not clustered near the proposed transferee district, this case is distinguishable from Volkswagen II and In re TS Tech. In Volkswagen II, all of the physical evidence was located within the proposed transferee venue. Volkswagen II, 545 F.3d at 316. Similarly in TS Tech, all of the sources of proof were located within 300 miles of the proposed transferee district, the Southern District of Ohio, and the original venue, the Eastern District of Texas, was about 900 additional miles away. In re TS Tech Corp., 551 F.3d at 1320
21. In these two cases, access to the physical evidence was clearly more convenient in the proposed transferee venue.
In contrast to Volkswagen II and In re TS Tech, the physical evidence in this case is distributed across the country, and the plaintiffs’, crossclaimant’s, and some of the third parties’ proof is closer to the Eastern District of Texas than the Western District of Washington. Accordingly, this factor is neutral.
2. Availability of Compulsory Process
The next private interest factor is the availability of compulsory process to secure the attendance of non-party witnesses. Rule 45(c)(3)(A)(ii) limits the court’s subpoena power by protecting non-party witnesses who work or reside more than 100 miles from the courthouse. Volkswagen II, 545 F.3d at 316.
Neither party has identified any non-party witnesses residing within 100 miles of Marshall, Texas. T-Mobile argues that this factor weighs heavily in favor of transfer as its current employees are located in the Western District of Washington. Because this factor considers the court’s ability to subpoena non-party witnesses, the location of T-Mobile’s current employees is not as relevant to the analysis. See In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1337-38 (Fed. Cir. 2009); Volkswagen II, 545 F.3d at 316 (discussing the subpoena power over non-party witnesses). But several of T-Mobile’s former employees are also located in the Western District of Washington; the proposed transferee venue’s absolute subpoena power over these witnesses favors transfer.
No district court has absolute subpoena power over all of the likely witnesses. Compare Volkswagen II, 545 F.3d at 317. Yet the Western District of Washington’s subpoena power over some witnesses must be considered. See In re Hoffmann-La Roche, 587 F.3d at 1337-38. Thus, this factor favors transfer.
3. Cost of Attendance for Willing Witnesses
Next, the court must weigh the cost for witnesses to travel and attend trial in the Eastern District of Texas versus the Western District of Washington. The Fifth Circuit has explained:
[T]he factor of inconvenience to witnesses increases in direct relationship to the
additional distance to be traveled. Additional distance means additional travel
time; additional travel time increases the probability for meal and lodging
expenses; and additional travel time with overnight stays increases the time which
these fact witnesses must be away from their regular employment. Volkswagen I, 371 F.3d at 205. The court must consider the convenience of both the party and non-party witnesses. See id. at 204 (requiring courts to “contemplate consideration of the parties and witnesses”); Fujitsu Ltd. v. Tellabs, Inc., 639 F. Supp. 2d. 761, 765-66 (E.D. Tex. 2009).
The issues here are similar to those discussed above in ease of access to sources of proof. Calypso, Drago Daic, and Jimmy Williamson, P.C. are located in Texas. Radio Shack witnesses likely reside in Texas as well. The ‘923 patent’s inventor and prosecuting attorney live in Florida. Although none of these parties live within 100 miles of Marshall, Texas or within this district, travel time and distance to the Eastern District of Texas is much shorter than to the Western District of Washington. See Deep Nines, Inc. v. McAfee, Inc., 2009 WL 3784372, at *3
n.3
(E.D. Tex. Nov. 10, 2009) (noting that witnesses and evidence in the Northern District of Texas are much closer to the Eastern District of Texas than the District of Minnesota); Emanuel
v.
SPX Corp. / OTC Tools Div., 2009 WL 3063322, at *8 (E.D. Tex. Sept. 21, 2009) (stating that a Houston-based plaintiff “is located in close proximity to the Eastern District of Texas”). On the other hand, most of T-Mobile’s employees and third-party witnesses live within the proposed transferee district, and travel to the Eastern District of Texas is much less convenient. Calypso asserts that T-Mobile’s “vague reference to the location of witnesses is insufficient, rather the movant must . . . explain what their testimony will cover.” Contrary to Calypso’s argument, T-Mobile is not required to outline the anticipated testimony of its specified witnesses. See Volkswagen II, 545 F.3d at 317 n.12.
The plaintiffs, crossclaimant, and some witnesses will be significantly inconvenienced by a transfer to the Western District of Washington. But the presence of the defendant’s employees and witnesses within the proposed transferee district slightly favors transfer, as neither the plaintiffs, the crossclaimant, nor the Texas-based witnesses are located in the Eastern District of Texas.
4. Other Practical Problems
Practical problems include issues of judicial economy. Volkswagen III, 566 F.3d 1349, 1351 (Fed. Cir. 2009). Judicial economy weighs against transfer when the court already has familiarity with the case’s factual issues. Id.
The plaintiffs argue that transfer to the Western District of Washington would result in prejudicial delays and increased expense to counsel. This case has already been delayed for several months while Calypso sought substitute counsel and the plaintiffs and crossclaimant fought for ownership of the patent; any additional delay caused by venue transfer is not prejudicial. The location of parties’ counsel and any additional travel expenses for counsel is irrelevant. In re Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003).
Familiarity with this case’s convoluted procedural history and patent ownership disputes is relevant to resolving T-Mobile’s pending motion to dismiss (Dkt. No. 109). In the motion to dismiss, T-Mobile argues that the original complaint’s sole plaintiff, Calypso, lacked standing to file this patent infringement suit because it was not the sole owner of the ‘923 patent. Calypso, Mr. Daic, and Jimmy Williamson, P.C. respond that the alleged standing defect was cured through the addition of Mr. Daic and Jimmy Williamson, P.C. as parties and the stipulation regarding ownership disputes. Because this court is familiar with the underlying factual issues necessary to resolve T-Mobile’s motion to dismiss, this factor weighs against transfer.
D. Public Interest Factors
1. Court Congestion
The court may consider how quickly a case will come to trial and be resolved. In re Genentech, 566 F.3d at 1347. This factor is the “most speculative,” however, and in situations where “several relevant factors weigh in favor of transfer and others are neutral, the speed of the transferee district court should not alone outweigh all of the other factors.” Id.
T-Mobile contends that the Western District of Washington has more judges and fewer cases in its docket than the Eastern District of Texas. But T-Mobile concedes that the median times from filing to trial and to final disposition are approximately the same. Therefore, this factor is neutral.
2. Local Interest
The court must consider local interest in the litigation, because “[j]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” Volkswagen I, 371 F.3d at 206 (5th Cir. 2004). Interests that “could apply virtually to any judicially district or division in the United States,” such as the nationwide sale of infringing products, are disregarded in favor of particularized local interests. Volkswagen II, 545 F.3d at 318; In re TS Tech, 551 F.3d at 1321.
T-Mobile asserts that the Western District of Washington has a local interest in this case because T-Mobile’s principal place of business is within that district and the allegedly infringing products were developed there. In contrast, none of the parties have offices in the Eastern District of Texas. See In re TS Tech, 551 F.3d at 1321 (noting that none of the parties had an office in the Eastern District of Texas, so this district lacked a local interest). Calypso argues that this district has a local interest because allegedly infringing products are sold in the Eastern District of Texas; as mentioned above, however, the nationwide sale of products is not a local interest. Thus, the Western District of Washington’s local interest in this dispute favors transfer.
3. Familiarity with the Governing Law
One of the public interest factors is “the familiarity of the forum with the law that will govern the case.” Volkswagen I, 371 F.3d at 203. The need to apply a particular state’s law may weigh in favor of or against transfer. Odom v. Microsoft Corp., 596 F. Supp. 2d 995, 1004 (E.D. Tex. 2009).
Both the Western District of Washington and the Eastern District of Texas are familiar with patent law, so the patent infringement claims do not affect the transfer analysis. See In re TS Tech, 551 F.3d at 1320-21. T-Mobile contends that a 2002 non-disclosure agreement between Calypso and T-Mobile is governed by Washington law, and thus favors transfer. This non-disclosure agreement may be relevant to T-Mobile’s laches and other equitable defenses. On the other hand, the disputed 2008 and 2009 Settlement Agreements are governed by Texas law. To resolve T-Mobile’s pending motion to dismiss for lack of standing, the court will likely need to consider the two settlement agreements. The relevance of the settlement agreements and this court’s familiarity with Texas law weigh against transfer.
4. Avoidance of Conflict of Laws
No conflict of laws issues are expected in this case, so this factor does not apply.
IV. Conclusion
Considering all of the private and public interest factors, the defendant has not met its burden of showing that the Western District of Washington is “clearly more convenient” than the Eastern District of Texas. See In re VTech Commc’ns, Inc., 2010 WL 46332, at *1 (Fed. Cir. Jan. 6, 2010) (citing Volkswagen II, 545 F.3d 504). Availability of compulsory process and local interest weigh in favor of transfer, and cost of witness attendance slightly favors transfer. On the other hand, other practical problems and familiarity with the governing law weigh against transfer, and ease of access to sources of proof weighs slightly against transfer. Therefore, T-Mobile’s motion to transfer venue is DENIED.