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`Case 4:18-cv-06185-HSG Document 30-2 Filed 01/22/19 Page 1 of 4
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`SARAH G. HARTMAN (Bar No. 281751)
`shartman@brownrudnick.com
`BROWN RUDNICK LLP
`Seven Times Square
`New York, NY 10036
`Telephone: (212) 209-4800
`Facsimile: (212) 209-4801
`
`Attorneys for Defendant
`AGIS SOFTWARE DEVELOPMENT LLC
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`ZTE (USA) INC.,
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`v.
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`Plaintiff,
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`AGIS SOFTWARE DEVELOPMENT LLC, et
`al.
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`Defendants.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
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`
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` Case No. 18-cv-06185-HSG
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`DECLARATION OF VINCENT J. RUBINO, III
`IN SUPPORT OF MOTION TO DISMISS
`FIRST AMENDED COMPLAINT
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`
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`Amended Complaint Filed: 31-DEC-2018
`Deadline to Respond: 22-JAN-2019
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`Hearing Date:
`Time:
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`
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`April 25, 2019
`2:00 p.m. PST
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`DECLARATION OF VINCENT J. RUBINO, III, CASE NO. 18-cv-06185
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`Case 4:18-cv-06185-HSG Document 30-2 Filed 01/22/19 Page 2 of 4
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`DECLARATION OF VINCENT J. RUBINO, III
`I, Vincent J. Rubino, III, hereby declare as follows:
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`1.
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`I am a partner at the law firm of Brown Rudnick LLP. I submit this declaration in
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`support of Defendant AGIS Software Development LLC’s (“AGIS Software” or “Defendant”)
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`Motion to Dismiss the First Amended Complaint filed by ZTE (USA) Inc. (“ZTE”). I am familiar
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`with the facts set forth herein.
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`2.
`(“AGIS, Inc.”) in connection with Advanced Ground Information Systems, Inc. v. Life360, Inc., Case
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`I previously served as counsel for Advanced Ground Information Systems, Inc.
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`No. 9:14-cv-80651-DMM (S.D. Fl. May 16, 2014, which alleged infringement of U.S. Patent Nos.
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`7,031,728 (the “’728 Patent”); 7,764,954 (the “’954 Patent”); 8,126,441 (the “’441 Patent”); and
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`7,672,681 (the “’681 Patent”)). AGIS Software was not involved in that action.
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`3.
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`I also serve as counsel for AGIS Software in connection with five patent infringement
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`actions filed in the Eastern District of Texas alleging infringement of most or all of the patents at
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`issue in this action, i.e., U.S. Patent Nos. 8,213,970 (the “’970 Patent”); 9,408,055 (the “’055
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`Patent”); 9,445,251 (the “’251 Patent”); 9,467,838 (the “’838 Patent”); and 9,749,829 (the “’829
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`Patent”) (collectively, the “Patents-in-Suit”). See AGIS Software Dev. LLC v. ZTE Corp, et al., Case
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`No. 2:17-cv-517 (E.D. Tex.), Dkts. 1, 32 (as amended, alleging infringement of all five Patents-in-
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`Suit against ZTE Corporation, ZTE (TX) and ZTE) (the “ZTE Texas Case”). AGIS Software Dev.
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`LLC v. Apple, Inc., Case No. 2:17-cv-516 (E.D. Tex.), Dkt. 32 (as amended, alleging infringement of
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`all five Patents-in-Suit); AGIS Software Dev. LLC v. HTC Corp., Case No. 2:17-cv-514 (E.D. Tex.),
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`Dkt. 1 (alleging infringement of the ‘838, ‘251, ‘055 and 970 patents); AGIS Software Dev. LLC v.
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`Huawei Device USA Inc., et al., Case No. 2:17-cv-513 (E.D. Tex.), Dkts. 1, 20 (alleging
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`infringement of the ‘838, ‘251, ‘055 and 970 patents); and AGIS Software Dev. LLC v. LG Elecs.,
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`Inc., Case No. 2:17-cv-515 (E.D. Tex.), Dkt. 1 (alleging infringement of the ‘838, ‘251, ‘055 and
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`970 patents) (collectively, the “Texas Cases”).
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`4.
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`All of the Texas Cases are currently still pending in the Eastern District of Texas,
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`except the ZTE Texas Case.
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`5.
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`In connection with the Texas Cases, I and/or my colleagues took several depositions
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`DECLARATION OF VINCENT J. RUBINO, III, CASE NO. 18-cv-06185
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`Case 4:18-cv-06185-HSG Document 30-2 Filed 01/22/19 Page 3 of 4
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`of witnesses located in California. These depositions took place in California as a result of the
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`locations and convenience of the witnesses relevant to the Texas Cases, as well as the scheduling
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`parameters of those witnesses and counsel.
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`6.
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`Aside from the depositions discussed above, I am aware of no other depositions on
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`behalf of AGIS Software that took place in California.
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`7.
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`To obtain information potentially relevant to the Texas Cases, my office served
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`subpoenas on Google, a non-party that happens to be located in California.
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`8.
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`Aside from the present suit, I am aware of no lawsuit that has been filed by or against
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`AGIS Software in California.
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`9.
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`To my knowledge, AGIS Software’s efforts to enforce its rights in the Patents-in-Suit
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`consist only of litigating patent infringement lawsuits filed in the Eastern District of Texas.
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`10.
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`On October 26, 2018, my office sent ZTE’s counsel e-mail correspondence
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`explaining that ZTE’s initial Complaint was deficient for lack of subject matter jurisdiction as to the
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`AGIS entities that do not own the Patents-in-Suit (Advanced Ground Information Systems, Inc.
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`(“AGIS, Inc.”) and AGIS Holdings, Inc. (“AGIS Holdings”), and for lack of personal jurisdiction as
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`to all three Defendants, as supported by the recent decision in Kyocera Int’l, Inc. v. Semcon IP, Inc.,
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`No. 3:18-CV-1575-CAB-MDD, 2018 WL 5112056, at *3 (S.D. Cal. Oct. 19, 2018) in which the
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`court granted the defendant’s motion to dismiss for lack of personal jurisdiction based on
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`substantially similar facts. The e-mail attached a copy of the Kyocera decision. Attached as Exhibit
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`A is a true and correct copy of the referenced correspondence, attaching a copy of the Kyocera
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`decision.
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`11.
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`ZTE’s counsel replied on October 30, 2018 expressing its disagreement with
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`Defendants’ position, and stating that it would not withdraw its complaint. Attached as Exhibit B is
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`a true and correct copy of ZTE’s counsel’s response.
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`12.
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`After ZTE’s counsel’s refusal to dismiss its initial complaint, my office began
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`drafting a motion to dismiss ZTE’s complaint pursuant to Rules 12(b)(1) and 12(b)(2) of the Federal
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`Rules of Civil Procedure, and a motion for sanctions pursuant to Rule 11.
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`13.
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`On December 26, 2018, my office shared Defendants’ portion of the joint case
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`DECLARATION OF VINCENT J. RUBINO, III, CASE NO. 18-cv-06185
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`Case 4:18-cv-06185-HSG Document 30-2 Filed 01/22/19 Page 4 of 4
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`management statement with ZTE’s counsel, which explained that defendants intended to file a
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`motion to dismiss for lack of subject matter jurisdiction and lack of personal jurisdiction, as well as a
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`potential motion for sanctions based on ZTE’s counsel’s refusal to dismiss its baseless allegations of
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`jurisdiction.
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`14.
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`That afternoon, the parties participated in a FRCP 26(f) discovery conference. ZTE’s
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`counsel did not indicate any intent to withdraw its Complaint or file an amended complaint.
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`15.
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`On December 31, 2018, the deadline for Defendants to respond to the initial
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`Complaint, Plaintiff filed its First Amended Complaint removing AGIS Holdings and AGIS, Inc. as
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`named defendants, but continuing to assert claims against AGIS Software. Dkt. 18.
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`I declare under penalty of perjury that the foregoing is true and correct. Executed this 22nd
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`day of January, 2019.
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`/s/Vincent J. Rubino, III
`Vincent J. Rubino, III
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`DECLARATION OF VINCENT J. RUBINO, III, CASE NO. 18-cv-06185
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