Google on Thursday urged the Fifth Circuit to transfer mobile analytics software company Branch Metric's lawsuit accusing the search giant of monopolizing several markets related to mobile device searches, saying a lower court was wrong to keep the suit in Texas since California is the "clearly more convenient forum."
Google said in a mandamus petition that a federal court in the Eastern District of Texas clearly abused its discretion when refusing to transfer Branch's suit to the Northern District of California, where both of the Mountain View-based companies are headquartered.
"None of the parties is based in the EDTX, the events which gave rise to this dispute occurred outside the EDTX, and there is no witness who may be compelled to provide testimony at trial in the EDTX," Google argued. "The district court's decision to allow this case to proceed in a forum with no connection to the case was patently erroneous."
Branch, according to its January complaint against Google, developed an Android application search technology called Discovery, which allows Android mobile users to use an integrated search bar on their device as a "one-stop shop" to access content across a "broad universe of Android apps available on their device, whether already downloaded or not."
It accuses Google of abusing its market power as a general search engine to destroy competition in the market for general and application search services.
It also accuses Google of abusing its monopoly power in Android app distribution through its Google Play Store by creating a "walled garden" for Android apps to be discovered and downloaded, and abusing its power in search text advertising by entering into exclusionary agreements.
Google has moved to dismiss the lawsuit, arguing in an April motion that Branch lacks antitrust standing, hasn't pled a colorable tying claim and hasn't adequately alleged that Google interfered with Branch's prospective business relations.
Branch has also moved to compel Google to produce a number of expert reports from a U.S. Department of Justice antitrust case against Google, in which a D.C. federal judge ruled last year that Google "is a monopolist" in the markets for general search services and general search text ads. Google says the reports have no relevance to Branch's lawsuit.
U.S. District Judge Rodney Gilstrap in the Eastern District of Texas refused Google's bid to transfer the lawsuit to California in late October, finding that the bulk of the factors the court considered were neutral, while some weighed only "slightly" in favor of transferring to the Golden State.
But Google, turning to the Fifth Circuit, said Thursday that Judge Gilstrap's decision "was the product of several errors."
Judge Gilstrap had, for instance, found that considerations about "court congestion" in California weigh in favor of keeping the suit in Texas. According to Judge Gilstrap's order, Branch had asserted that the median time to trial is 25.9 months in the Eastern District of Texas and 40.2 months in the Northern District of California.
Google said Thursday that the lower court found the court congestion factor to be the "only one of the eight transfer factors that weighed against transfer, with three factors weighing in favor of transfer."
It said that in refusing a transfer, the district court thus "effectively ignored" multiple factors the court determined favored a transfer and "instead assigned 'dispositive weight' to what it conceded is the most 'speculative' factor."
"Mandamus is warranted for that reason alone," Google argued.
Google said that the lower court also faulted Google for failing to specify which witnesses would be called at trial or prove that any of the witnesses would be unwilling to testify in the Texas court, even though the Fifth Circuit "has made clear that such putative failures at the very outset of litigation cannot weigh against transfer."
Google said that the lower court, meanwhile, "downplayed uncontroverted evidence" that most of the potentially relevant witnesses are closer to the California court.
Another one of six errors Google said the lower court made was concluding that the locations of data centers spread out across the U.S. "nearly neutralized the far more relevant location of the headquarters of the parties and relevant nonparties."
Google said that while mandamus is an extraordinary remedy, the Fifth Circuit has ordered the remedy in similar circumstances where a plaintiff is engaged in "blatant forum shopping" and a defendant has to litigate in a "clearly inconvenient forum with no connection whatsoever to the underlying events through judgment."
Counsel for Google and Branch did not immediately respond to requests for comment late Thursday.
Google is represented by Melissa R. Smith of Gillam & Smith LLP, John E. Schmidtlein, Benjamin M. Greenblum and Alexander S. Zolan of Williams & Connolly LLP and Matthew L. McGinnis and Adam R. Safadi of Ropes & Gray LLP.
Branch is represented by Neal Manne, Alex Kaplan, John Schiltz, Danielle Nicholson and Zachary B. Savage of Susman Godfrey LLP, Claire Abernathy Henry of Miller Fair Henry PLLC and Steven C. Holtzman.
The case is In re Google LLC, case number 25-40788, in the U.S. Court of Appeals for the Fifth Circuit. The district court proceeding is Branch Metrics Inc. v. Google LLC, case number 2:25-cv-00089, in the U.S. District Court for the Eastern District of Texas.
Dec 4
Deal Summary
