Case 5:21-cv-04653-BLF Document 78 Filed 03/28/22 Page 1 of 10
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`BAKER BOTTS L.L.P.
`Jeremy J. Taylor (SBN 249075)
`jeremy.taylor@bakerbotts.com
`Arya Moshiri (SBN 324231)
`arya.moshiri@bakerbotts.com
`101 California St., Ste. 3600
`San Francisco, CA 94111
`Telephone: 415.291.6200
`Facsimile: 415.291.6300
`Bethany R. Salpietra (pro hac vice)
`bethany.salpietra@bakerbotts.com
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: 214.953.6500
`Facsimile: 214.953.6503
`Attorneys for Plaintiff Lyft, Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`LYFT, INC.
`
`Plaintiff,
`
`v.
`AGIS SOFTWARE DEVELOPMENT LLC,
`Defendant.
`
`Case No. 5:21-cv-04653-BLF
`
`PLAINTIFF LYFT, INC.’S NOTICE OF
`MOTION AND MOTION FOR LEAVE
`TO FILE FIRST AMENDED
`COMPLAINT
`
`REDACTED VERSION
`
`Date: July 28, 2022
`Time: 9:00 A.M.
`Judge: Hon. Beth Labson Freeman
`Trial Date: October 16, 2023
`Courtroom: 3, Fifth Floor
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`LYFT, INC.’S NOTICE OF MOTION AND MOTION FOR
`LEAVE TO FILE FIRST AMENDED COMPLAINT
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`Case 5:21-cv-04653-BLF Document 78 Filed 03/28/22 Page 2 of 10
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`NOTICE OF MOTION AND MOTION
`Plaintiff Lyft, Inc. (“Lyft”) hereby gives notice that on July 28, 2022 at 9:00 A.M., in
`Courtroom 3, Fifth Floor, of the United States District Court for Northern District of California, San
`Jose Division, located at 280 South First Street, San Jose, California, or as soon thereafter as counsel
`may be heard, a hearing will be held by the Honorable Beth Labson Freeman, United States District
`Judge, on Lyft’s Motion for Leave to File First Amended Complaint (“FAC”) in this action.
`Through this Motion Lyft moves for leave to amend its complaint against AGIS Software
`Development LLC, pursuant to Civil L.R. 7-2 and Fed. R. Civ. P. 15(a), in order to add (1) parties
`Advanced Ground Information Systems, Inc., AGIS Holdings, Inc., and Malcolm K. Beyer, Jr.; and
`(2) a breach of contract claim.
`This Motion is based on the following Memorandum of Points and Authorities, the
`accompanying declaration of Bethany R. Salpietra, the pleadings and records on file in this action,
`and such other written and/or oral arguments as may be presented at or before the time this Motion
`is taken under submission by the Court. The FAC, which Lyft seeks leave to file, is attached hereto
`as Ex. 1.
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`LYFT, INC.’S NOTICE OF MOTION AND MOTION FOR
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`Case 5:21-cv-04653-BLF Document 78 Filed 03/28/22 Page 3 of 10
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`I.
`On January 28, 2022, this Court granted Lyft leave to file an amended complaint with the
`benefit of jurisdictional discovery. See Dkt. 61. The same Order requires Lyft to seek leave of
`Court or a stipulation with AGIS Software Development LLC (“AGIS Software”) in order to add
`new parties or claims to the amended complaint. Recent case developments have confirmed that
`additions of both are required. As is set forth below, Lyft’s FAC seeks to add Advanced Ground
`Information Systems, Inc. (“AGIS, Inc.”), AGIS Holdings, Inc. (“AGIS Holdings”) and Malcolm
`K. Beyer, Jr. (collectively, “Alter Ego Parties”) as new parties given that each is an alter ego of
`AGIS Software and add a breach of contract claim to the instant suit that had previously been plead
`in the Eastern District of Texas lawsuit. Because these amendments are made in the interest of
`justice and AGIS Software cannot show strong evidence that such amendments are at odds with the
`Foman factors, Lyft respectfully requests the Court grant Lyft’s motion.
`II.
`STATEMENT OF FACTS
`On June 16, 2021, Lyft filed the instant action against AGIS Software seeking a declaratory
`judgment of non-infringement of United States Patent Nos. 7,031,728, 7,630,724, 8,213,970,
`10,299,100, and 10,341,838 (collectively, “Patents-in-Suit”). See Dkt. 1. In its Complaint, Lyft
`alleged that this Court has specific jurisdiction over AGIS Software based on, inter alia, AGIS
`Software’s affiliate’s contacts with this forum under an alter ego theory. Id., ¶¶ 2, 14, 6 and 21. On
`January 28, 2022, the Court dismissed Lyft’s Complaint for lack of personal jurisdiction under FED.
`R. CIV. P. 12(b)(2), granting Lyft leave to amend its complaint with the benefit of jurisdictional
`discovery but noting that no new claims or parties should be added without “leave of the Court or a
`stipulation with AGIS Software.” See Dkt. 61 at 10. In its Order, the Court specifically found that
`Lyft had “presented sufficient facts to justify jurisdictional discovery” regarding its claim that AGIS
`Software is an alter ego of its affiliates AGIS, Inc. and AGIS Holdings and granted Lyft leave to
`pursue jurisdictional discovery “regarding the relationship between AGIS Software, AGIS, Inc., and
`AGIS Holdings and their contacts with California.” Id. at 9. The Order specifically granted Lyft’s
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`request for jurisdictional discovery in the form of five interrogatories and one four-hour Rule
`30(b)(6) deposition. Id. at 10.
`Pursuant to the Court’s order, Lyft served a 30(b)(6) notice and five jurisdictional
`interrogatories on AGIS Software on February 4, 2022. See Exs. 2 & 3. Simultaneously, Lyft issued
`document and deposition subpoenas to AGIS, Inc. and AGIS Holdings, which included requests
`that are coextensive with the interrogatories and deposition topics directed at AGIS Software. See
`Exs. 4 & 5. AGIS Software served objections and responses to Lyft’s 30(b)(6) notice and
`interrogatories thereafter, which clarified that AGIS Software responded only on behalf of itself and
`was not responding on behalf of AGIS, Inc. or AGIS Holdings because they are not parties to this
`action. See Exs. 6 - 8. Likewise, AGIS, Inc. and AGIS Holdings also refused to produce documents
`or witnesses pursuant to Lyft’s subpoenas because the subpoena requests allegedly “exceed the
`scope of jurisdictional discovery ordered by the Court.” See generally, Ex. 9 & 10.
`III.
`LEGAL STANDARD
`Rule 15(a)(2) provides that, when, as here, a motion for leave to amend is filed prior to the
`deadline to amend pleadings, “[t]he court should freely give leave when justice so requires.” FED.
`R. CIV. P. 15(a)(2). This policy is to be applied with “extreme liberality.” Owens v. Kaiser Found.
`Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v.
`Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). In fact, the denial of a motion for leave to amend “must
`be ‘strictly’ reviewed in light of the strong policy permitting amendment.” Poling v. Morgan, 829
`F.2d 882, 886 (9th Cir. 1987). A party opposing an amendment bears the burden of showing why
`the amendment should not be granted. See Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 666 (Fed.
`Cir. 1986); see also DCD Programs, Ltd. V. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
`Leave to amend should especially be granted where the nonmoving party is unable to show
`strong evidence that the amendment would cause prejudice, is sought in bad faith, creates undue
`delay, is futile, or there was “repeated failure to cure deficiencies by amendments previously
`allowed.” Sonoma Cty. Ass’n of Ret. Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013)
`(citing Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Chudacoff v. Univ. Med. Ctr. of S. Nev.,
`649 F.3d 1143, 1153 (9th Cir. 2011). Of these “Foman factors,” prejudice is the most important.
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`LYFT, INC.’S NOTICE OF MOTION AND MOTION FOR
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`Eminence Capital, 316 F.3d 1048, 1052 (9th Cir. 2003); see also DCD Programs, 833 F.2d at 187
`(“The party opposing amendment bears the burden of showing prejudice.”).
`IV.
`ARGUMENT
`Lyft seeks leave under Federal Rule of Civil Procedure 15(a) to add the Alter Ego Parties to
`the instant lawsuit and add a breach of contract claim previously plead in the Eastern District of
`Texas lawsuit. The Court should grant Lyft’s request because “justice so requires.” FED. R. CIV. P.
`15(a)(2). Lyft’s proposed addition of parties and its breach of contract claim directly results from
`recent case developments. First, Lyft’s addition of the Alter Ego Parties is necessary in view of
`AGIS Software and its affiliates’ refusal to provide the jurisdictional discovery sought by Lyft
`concerning AGIS, Inc. and AGIS Holdings under the present circumstances. Second, Lyft’s
`addition of the breach of contract claim is directly related to the same breach of contract claim Lyft
`brought as a counterclaim against AGIS Software in the Eastern District of Texas before that case
`was dismissed in January of this year. AGIS Software Development LLC v. Lyft, Inc., 2:21-cv-
`00072-JRG (hereinafter, “EDTX Action”), ECF No. 334. Because the Eastern District of Texas
`case has been dismissed, Lyft seeks leave to add the breach of contract claim to this case. Because
`AGIS Software cannot show strong evidence that these proposed additions are at odds with the
`Foman factors, this Court should grant this motion under the liberal amendment policy contemplated
`by Rule 15.
`
`a. ADDITION OF ALTER EGO PARTIES TO FAC
`Pursuant to this Court’s Order (Dkt. 61), Lyft served jurisdictional discovery on AGIS
`Software and two of its affiliates, AGIS, Inc. and AGIS Holdings. In pertinent part, Lyft’s discovery
`sought two types of information from both AGIS, Inc. and AGIS Holdings: (1) information
`regarding whether the entity is an alter ego of AGIS Software; and (2) information regarding
`whether the entity has contacts with the state of California. Neither entity has provided the requested
`discovery, objecting that the production of documents or a witness allegedly “exceed[s] the scope
`of jurisdictional discovery ordered by the Court” or objecting because “Advanced Ground
`Information Systems, Inc. and AGIS Holdings, Inc. are not parties to the present litigation.” See
`generally, Ex. 9 & 10; see also Exs. 7 & 8 at 2. Lyft disagrees that refusing to produce the requested
`
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`. See Ex. 7 at 12-17 (
`
`information concerning AGIS, Inc. and AGIS Holdings is proper, as separately discussed in Lyft’s
`motion to compel filed contemporaneously with this motion, but this issue can be avoided by adding
`these parties and Mr. Beyer to the case, which as shown in Lyft’s First Amended Complaint, are
`alter egos of each other.
`The addition of these parties to the instant suit is further necessary as Lyft has learned
`through its jurisdictional discovery efforts that AGIS Software is
`
`
`
`
`
`); Ex. 11 at 144:7-8 (
`). Because of this, AGIS Software may try to avoid liability (e.g., payment of costs
`. Id. Lyft is especially attuned to
`or fees)
`this liability-avoidance issue as it is currently pursuing fees from AGIS Software in the EDTX
`Action due to the unreasonable litigation strategies AGIS Software employed in that matter. See
`EDTX Action, ECF No. 372.
`Adding each of the alter ego entities to this lawsuit will prevent AGIS Software from
`avoiding it discovery obligations in this case and from escaping liability for its actions by
` and claiming insolvency, neither of which would be in
`the interest of justice. For the reasons described above, Lyft seeks leave to add the Alter Ego Parties
`to the FAC.
`
`b. ADDITION OF BREACH OF CONTRACT CLAIM TO FAC
`On May 19, 2021, AGIS Software served its infringement contentions accusing the Lyft
`application installed on all
` mobile devices. See Ex. 12. On information and belief, AGIS
`Software’s infringement claims
`
`
`. See, e.g., Ex. 11 at 44:10-11 & 81:4-
`); see also
`5 (
`Perfect Co. v. Adaptics Ltd., 374 F. Supp. 3d 1039, 1040 (W.D. Wa. 2019) (describing an Apple
`settlement agreement as including a covenant not to sue “Apple or any of its customers, affiliate[s],
`
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`suppliers, and others for infringement of the [asserted patent] or any other claiming priority to it.”);
`EDTX Action, ECF No. 205 at 14-19 (raising breach of contract as a counterclaim to AGIS
`Software’s allegations of infringement of the Patents-In-Suit).
` as a counterclaim
`Lyft initially filed a breach of contract claim
`in the Eastern District of Texas lawsuit in November 2021. Id. Because the Eastern District of
`Texas lawsuit was dismissed in January 2022, Lyft seeks leave to amend its complaint to add the
`breach of contract claim to the present case. Given the recency of the Eastern District of Texas case
`being dismissed, it is in the interest of justice to allow Lyft to now add its breach of contract claim
`to the present case.
`c. LYFT PURSUED ITS REQUEST FOR AMENDMENT WITH AGIS SOFTWARE
`BEFORE RAISING THE ISSUE WITH THE COURT.
`To avoid burdening the Court with the instant motion, Lyft sought a stipulation from AGIS
`Software to add the parties and claim discussed herein. The parties met and conferred on this issue
`on March 14, 2022 but no agreement was reached. AGIS Software indicated that it opposed Lyft’s
`request to add the Alter Ego Parties and the breach of contract claim to the FAC.
`
`d. AGIS CANNOT DEMONSTRATE PREJUDICE, BAD FAITH, DELAY OR
`FUTILITY.
`Lyft should be granted leave to amend the complaint under Federal Rule of Civil Procedure
`15 because AGIS Software cannot show that the amendment would cause prejudice to it, is sought
`in bad faith, creates undue delay, is futile, or that there was repeated failure to cure deficiencies by
`amendments previously allowed. See Eminence Capital, 316 F.3d at 1052 (“Absent prejudice, or a
`strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a)
`in favor of granting leave to amend.”). These considerations are addressed in turn below.
`i. AGIS Software Will Not Be Prejudiced by the FAC.
`AGIS Software will suffer no prejudice by allowing Lyft to amend the complaint in order to
`add the breach of contract claim and the Alter Ego Parties. Prejudice can result, for example, where
`the parties are facing a discovery deadline or trial and the amendment would undermine those
`upcoming deadlines. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
`Prejudice may also arise, for example, if an amendment “greatly alter[s] the nature of the litigation
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`and would [] require[] defendants to [] undertake[], at a late hour, an entirely new course of defense.”
`Morongo Band, 893 F.2d at 1079. AGIS Software cannot satisfy its burden to show prejudice.
`As an initial matter, courts have consistently held that there is no prejudice when a party
`seeks to amend the complaint in the early stages of litigation. See DCD Programs, 833 F.2d at 187-
`88 (finding abuse of discretion to deny leave to file fourth amended complaint when the “case is
`still at the discovery stage”). This case is in the early stages of litigation, with Markman scheduled
`more than five months from now. See Dkt. 69. Adding the Alter Ego Parties and the breach of
`contract claim to the case at this point will not prejudice AGIS.
`Furthermore, AGIS Software is already on notice of the theories and many (if not all) of the
`facts underlying Lyft’s request to add its breach of contract claim and the Alter Ego Parties to its
`FAC. Regarding Lyft’s breach of contract claim, Lyft first put AGIS Software on notice of this
`claim due to the parties’ previous litigation in the EDTX Action. In particular, AGIS Software is
`aware that Lyft contends that AGIS Software is
`
`. See EDTX Action, ECF No. 205 at
`14-19. Likewise, Lyft’s addition of parties to the instant lawsuit is not novel information to AGIS
`Software. As memorialized in the parties’ joint case management conference statement (Dkt. 51),
`Lyft conferred with AGIS Software in early January 2022 about potentially adding AGIS Software’s
`alter ego, AGIS, Inc., as a party to the lawsuit. Dkt. 51 at 1, 5 and 6. But recent case developments—
`including jurisdictional discovery from AGIS Software and the discovery stonewalling by AGIS,
`Inc. and AGIS Holdings—have confirmed the need to bring in all three Alter Ego Parties as parties
`to the instant suit. See supra § IV(a). Notably, AGIS Holdings and Mr. Beyer should be added as
`parties for the same reasons previously articulated with respect to AGIS, Inc.: they are each the alter
`ego of AGIS Software.
`For the foregoing reasons, there is no prejudice to AGIS Software, and this Foman factor
`does not weigh against the “extremely liberal” amendment policy of Rule 15. See Owens, 244 F.3d
`at 712.
`
`ii. The FAC Will Not Cause Any Delay to the Schedule or Proceedings.
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`There will be no delay to this case as a result of the amendment, let alone undue delay.
`“Undue delay” encompasses two inquiries, first being whether the proposed amendments would
`cause an undue delay in the proceedings. See e.g., Brother Records, Inc. v. Jardine, 318 F.3d 900,
`910-11 (9th Cir. 2003). The second inquiry is whether the party seeking leave to amend unduly
`delayed in seeking amendment. See e.g., Caswell v. Calderon, 363 F.3d 832, 839-40 (9th Cir. 2004).
`With respect to the first inquiry, Lyft’s proposed addition of its breach of contract claim and
`Alter Ego Parties will not delay any of the proceedings. AGIS Software has been on notice of Lyft’s
`alter ego theory of liability since it filed this complaint in June 2021 and Lyft’s breach of contract
`claim since November 2021 at the very latest. See Dkt. 1; EDTX Action, ECF No. 205. The Court
`would not have to change the case schedule in order to accommodate these additions to the FAC,
`which this Court has already granted Lyft leave to file. Dkt. 61, at 10.
`With respect to the second inquiry, Lyft did not delay in seeking to amend its Complaint.
`This Court expressly authorized Lyft’s filing of its FAC on January 28, 2022, but ordered that Lyft
`seek leave to add new parties or claims. Id. Recent case developments, including AGIS Software’s
`service of its infringement contentions and its affiliates’ refusal to engage in jurisdictional discovery,
`established a need to add new parties and claims to the case. Because Lyft brings this motion before
`the expiration of the deadline to amend pleadings, no such delay can be found.
`iii. The FAC is Not Futile.
`Although leave to amend may be denied for futility, “a proposed amendment is futile only
`if no set of facts can be proved under the amendment to the pleadings that would constitute a valid
`and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
`Here, Lyft seeks to add a breach of contract claim and the Alter Ego Parties based on its good faith
`evaluation of AGIS Software’s infringement contentions and the jurisdictional discovery Lyft has
`received to date, respectively. There is no evidence of bad faith or dilatory motive. See Home Sav.
`Of Am. v. Felipe, No. C12-01419 LB, 2013 WL 1856502, at *6 (N.D. Cal. May 2, 2013) (permitting
`amendment based on newly discovered facts where there was no indication of bad faith).
`iv. Lyft Has Not Previously Amended its Complaint.
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`Finally, in considering whether to permit amendment, courts consider “a plaintiff’s
`‘repeated failure to cure deficiencies by previous amendments.’” Jara v. Aurora Loan Servs. LLC,
`No. CV 11-00419 LB, 2011 WL 4536898, *5 (N.D. Cal. Sep. 30, 2011) (emphasis in original)
`(quoting Foman, 371 U.S. at 182). Lyft has not sought to amend its complaint, let alone previously
`attempted to make the amendments it now seeks. Thus, this factor does not weigh against
`amendment, and Lyft’s motion should be granted.
`V.
`CONCLUSION
`For the foregoing reasons, Lyft respectfully requests leave to amend its Complaint to add
`the Alter Ego Parties and its breach of contract claim, and further requests that its First Amended
`Complaint submitted herewith be deemed filed as of the date of the Order granting this motion.
`
`Dated: March 28, 2022
`
`Respectfully submitted,
`
`By:
`
`/s/ Jeremy J. Taylor
`Jeremy J Taylor
`
`Jeremy J. Taylor (SBN 249075)
`Arya Moshiri (SBN 324231)
`jeremy.taylor@bakerbotts.com
`arya.moshiri@bakerbotts.com
`BAKER BOTTS L.L.P.
`101 California St., Ste. 3600
`San Francisco, CA 94111
`Telephone: 415.291.6200
`Facsimile: 415.291.6300
`Bethany R. Salpietra (pro hac vice)
`bethany.salpietra@bakerbotts.com
`BAKER BOTTS L.L.P.
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: 214.953.6500
`Facsimile: 214.953.6503
`
`Attorneys for Plaintiff Lyft, Inc.
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