Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 1 of 10 PageID #: 3010
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`GODO KAISHA IP BRIDGE 1,
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`Plaintiff,
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`v.
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`BROADCOM LIMITED, BROADCOM
`CORPORATION, AVAGO TECHNOLOGIES,
`LTD., AVAGO TECHNOLOGIES U.S., INC.,
`and LSI CORPORATION
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`Defendants.
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`Case No. 2:16-cv-00134-JRG-RSP
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`JURY TRIAL DEMANDED
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`PLAINTIFF GODO KAISHA IP BRIDGE 1’S SUR-REPLY IN OPPOSITION TO
`DEFENDANTS BROADCOM LTD. AND AVAGO TECHNOLOGIES LTD.’S
`MOTION TO DISMISS THE FIRST AMENDED COMPLAINT PURSUANT
`TO FED. R. CIV. P. 12(b)(2) AND FED. R. CIV. P. 12(b)(6)
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 2 of 10 PageID #: 3011
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`B.
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`C.
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`PERSONAL JURISDICTION OVER MOVING DEFENDANTS IS PROPER............... 1
`A.
`All Defendants Hold Themselves Out As One and Act in Consort to
`Infringe .................................................................................................................... 1
`Moving Defendants Do Not Contest That The Non-Moving
`Defendants Are Moving Defendants’ Agents Acting Under Their
`Direction and Control ............................................................................................. 1
`Moving Defendants’ Attempt to Divorce Themselves From Their
`Jurisdictionally-Conferring Websites Fails............................................................. 2
`IF NECESSARY, IP BRIDGE’S SHOWING OF PERSONAL JURISDICTION CAN
`BE REINFORCED BY JURISDICTIONAL DISCOVERY ............................................. 4
`IP BRIDGE HAS STATED A CLAIM FOR PATENT INFRINGEMENT ...................... 5
`III.
`Conclusion ...................................................................................................................................... 5
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 3 of 10 PageID #: 3012
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`IP Bridge respectfully submits this Sur-reply to Moving Defendants Motion to Dismiss.
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`I.
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`PERSONAL JURISDICTION OVER MOVING DEFENDANTS IS PROPER
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`A.
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`All Defendants Hold Themselves Out As One and Act in Consort to Infringe
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`As demonstrated in IP Bridge’s Response, Moving Defendants act in consort with the
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`defendant subsidiaries—as to which the exercise of this Court’s jurisdiction is uncontested—to
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`distribute and market accused products in and to Texas, and also hold themselves out to the
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`world as responsible for the design, development, distribution and sale of the accused products.
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`D.I. 52 at 7-8, 10-11. As further noted in IP Bridge’s Response, courts routinely find the exercise
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`of jurisdiction in such circumstances to be proper. Id. In Reply, Moving Defendants do not
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`dispute IP Bridge’s factual showing, nor are they able to distinguish IP Bridge’s cases. In fact,
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`Moving Defendants confirm that they and their subsidiaries act and hold themselves out as one.
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`D.I. 54 at 3 (“But these statements show that the reference to Broadcom Ltd. or Avago
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`Technologies is referencing the activities of the corporate family and not of the individual
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`companies.”; “. . . a corporation’s use of inclusive statements about a corporate family . . . .”)
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`(emphasis added). As such, jurisdiction is proper. See cases cited in D.I. 52 at 7-8, 11.
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`B. Moving Defendants Do Not Contest That The Non-Moving Defendants Are
`Moving Defendants’ Agents Acting Under Their Direction and Control
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`IP Bridge demonstrated in its Response that Moving Defendants have directed and
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`controlled the infringing activities of their agent-subsidiaries. Indeed, they treat their subsidiaries
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`as mere divisions and maintain no separation between officers and executives of Broadcom Ltd.
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`and of the other defendants—all of which makes exercise of jurisdiction proper here. D.I. 52 at
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`5-7, 10-11. Broadcom makes no effort to address any of these showings.1
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`1 Moving Defendants also make no attempt to explain why a “mere holding company” needs such an extensive
`managerial team. See D.I. 52 at 5-6. Even without resolving all factual disputes in IP Bridge’s favor at this
`procedural posture, it is clear that Moving Defendants act as far more than mere holding companies.
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 4 of 10 PageID #: 3013
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`Instead, Moving Defendants reassert their strawman argument that IP Bridge cannot
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`pierce the corporate veil, but do not rebut IP Bridge’s showing that the non-moving defendants
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`act as agents under the direction and control of the Moving Defendants. See D.I. 52 at 4-5. IP
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`Bridge does not seek to pierce the corporate veil because doing so is not necessary for a finding
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`of jurisdiction here, particularly where there is no dispute that the non-moving defendants are
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`subject to jurisdiction in Texas. See, e.g., Daimler AG v. Bauman, 134 S.Ct. 746, 759 n. 13 (2014)
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`(“[A] corporation can purposefully avail itself of a forum by directing its agents or distributors to
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`take action there.”)); ReedHycalog UK, Ltd. v. United Diamond Drilling Servs., Inc., No. 6:07
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`CV 251, 2009 WL 2834274, at *3 (E.D. Tex. Aug. 31, 2009) (quoting O’Quinn v. World Indus.
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`Constructors, Inc., 874 F. Supp. 143, 145 (E.D. Tex. 1995) (“‘[a]ctions by an agent . . . can be
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`used to establish jurisdiction over the principal. . . .’”).2
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`Further, while Moving Defendants continue to assert that Meesrs. Samueli and Kawwas
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`are not “employed by” the Moving Defendants (D.I. 53 at 4), Moving Defendants have failed to
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`address IP Bridge’s uncontroverted evidence that Moving Defendants themselves (and not
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`through their subsidiaries) have entered into employment agreements with those individuals. D.I.
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`52 at 6, n.4. Regardless, even if Messrs. Samueli and Kawwas are not “employed by” Moving
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`Defendants, despite contrary evidence, there is no dispute that Broadcom Ltd. holds them out to
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`be officers of Broadcom Ltd. D.I. 52 at 5.
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`C. Moving Defendants’ Attempt to Divorce Themselves From Their
`Jurisdictionally-Conferring Websites Fails
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`IP Bridge established Moving Defendants identify themselves in news releases as the
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`parties that promote products on www.broadcom.com and www.avagotech.com websites. D.I. 52
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`2 Moving Defendants’ citation to Nichols v. Pabtex, Inc., 151 F. Supp. 2d 772, 781 (E.D. Tex. 2001), does not help
`them. D.I. 54 at 5 n.7. That case did not address personal jurisdiction at all, but rather dealt with liability under the
`Federal Employers Liability Act, 45 U.S.C. § 51.
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`2
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 5 of 10 PageID #: 3014
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`at 3-4. In Reply, they suggest that the references to Broadcom Ltd. and Avago Ltd. in such new
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`releases are instead references to the corporate family, and not the individual companies
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`identified. D.I. 53 at 3-4. Even if one were to accept this statement as true (contrary to the
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`requirement that all disputed facts must be viewed most favorably to IP Bridge), there is little
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`doubt that Broadcom Ltd. and Avago Ltd., as the controlling entities, are involved in marketing
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`the accused devices to Texas, and use their names interchangeably with the “Broadcom family”
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`to sell products. Further, Moving Defendants did not address IP Bridge’s evidence—that is now
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`un-rebutted—that Avago Tech. identified the www.avagotech.com website as its’ own in SEC
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`filings. See D.I. 52 at 11. Further, Broadcom altered its main webpage in an apparent effort to
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`conceal from the Court the fact it plainly stated that Broadcom Ltd. owned the copyright to the
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`content therein.3
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`Under these circumstances, Moving Defendants assertion that they are not subject to
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`jurisdiction is folly. For example, in GSK Technologies, Inc. v. Schneider Electric, S.A., two out-
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`of-state defendants argued that they did not have minimum contacts with Texas because they did
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`not make, use, sell, or import the accused products anywhere in the world. GSK, No. 6:06-cv-361,
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`2007 U.S. Dist. LEXIS 17699, *9 (E.D. Tex. Mar. 14, 2007). However, just like Moving
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`Defendants here, the defendants (1) identified and advertised themselves interchangeably on
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`their websites and in sales literature with the entity that did make and sell the accused products,
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`and (2) made public representations that they were the actual companies behind the brand:
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`3 Citing to printouts of the www.broadcom.com webpage, IP Bridge noted in its Response that “Broadcom Ltd.” is
`listed as owning the copyright to the website’s contents. D.I. 42 at 8. It appears that those printouts are not exact
`reproductions of what appears on that website because they omit the copyright information. Disingenuously,
`Moving Defendants argue in Reply that the exhibits do not indicate that Broadcom Ltd. owns the copyright to the
`contents of the website, without referencing the website itself. D.I. 53 at 3 n.3. At the time IP Bridge filed its
`Response, the website plainly stated “Contents ©2016 Broadcom Ltd.” See Declaration of Andrew Radsch, ¶4,
`submitted herewith. Moving Defendants did not inform the Court of that fact. More troubling, since that time, the
`website has been altered to change that copyright reference—perhaps in an attempt to conceal that “Broadcom Ltd.”
`clearly was identified as the copyright owner. Radsch Decl., ¶¶4-6. Moving Defendants did not inform the Court of
`that, either. In any event, Broadcom Ltd. never states that it is not the copyright holder.
`3
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 6 of 10 PageID #: 3015
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`GSK presented evidence that SESA and SEHI identify and
`advertise themselves interchangeably as "Schneider Electric" to
`promote the Square D brand. Throughout their websites and sales
`literature, including the instruction sheet provided with the alleged
`infringing product, SESA and SEHI reference Square D as their
`"brand name" for the sale of circuit breakers in the United States.
`SESA and SEHI freely use the Square D mark and make public
`representations that they are the actual company behind the Square
`D brand and reference Square D as a North American division of
`Schneider Electric.
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`GSK Techs., 2007 U.S. Dist. LEXIS 17699, *9. As a result of these activities by the out of state
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`defendants, this Court held that they had “sufficient minimum contacts with the State of Texas to
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`justify subjecting them to personal jurisdiction.” GSK Techs., 2007 U.S. Dist. LEXIS 17699, *9.
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`So, too, do Moving Defendants here.
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`II.
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`IF NECESSARY, IP BRIDGE’S SHOWING OF PERSONAL JURISDICTION
`CAN BE REINFORCED BY JURISDICTIONAL DISCOVERY
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`In its Response, IP Bridge requested that, to the extent the Court determines that IP
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`Bridge has failed to make the necessary showing of personal jurisdiction, the Court permit IP
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`Bridge to seek jurisdictional discovery of Moving Defendants. Dkt. 52 at 13. Moving Defendants
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`did not respond directly to this request in their Reply, but simply state that “IP Bridge has had
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`ample opportunity to take jurisdictional discovery, but has declined to do so.”4 Dkt. 53 at 2.
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`Contrary to Moving Defendants’ assertion, jurisdictional discovery is at the Court’s discretion,
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`and not something that IP Bridge can seek unilaterally. Patterson v. Dietze, Inc., 764 F.2d 1145,
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`1148 (5th Cir. 1985) (“[J]urisdictional discovery is within the trial court’s discretion and will not
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`be disturbed ordinarily unless there are unusual circumstances showing a clear abuse.”) (internal
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`quotation marks omitted). IP Bridge timely requested permission from the Court to seek
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`4 Moving Defendants assert that the Court must accept the statements in Ms. Perkins’ declaration as “uncontroverted”
`due to IP Bridge’s supposed failure to take jurisdictional discovery. Dkt. 53 at 2. This is contrary to Federal Circuit
`precedent, which requires that all disputes over personal jurisdiction be decided in favor of the nonmoving party
`prior to jurisdictional discovery. Deprenyl Animal Health v. University of Toronto, 297 F. 3d 1343, 1347 (Fed. Cir.
`2002).
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`4
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 7 of 10 PageID #: 3016
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`jurisdictional discovery in its Response to Moving Defendants’ Motion to Dismiss, should such
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`discovery even be necessary. Dkt. 52 at 13.
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`Further, Moving Defendants’ assertion that “IP Bridge has had ample opportunity to take
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`jurisdictional discovery, but has declined to do so,” is false and highly misleading. D.I. 53 at 2.
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`IP Bridge diligently has sought discovery from Defendants on many topics and has been
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`thwarted at nearly every turn, including by counsel for Moving Defendants failing to respond to
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`requests for times to meet and confer on discovery disputes, or offering times only weeks out
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`from the request. Radsch Decl., ¶7. In addition, in response to a request for the production of
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`documents relating to the Defendants’ corporate relationship, Defendants objected on a number
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`of baseless grounds, including that “documents” is vague and ambiguous and that the request is
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`overly broad, and have produced little to nothing of relevance to date. Radsch Decl., ¶8.
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`III.
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`IP BRIDGE HAS STATED A CLAIM FOR PATENT INFRINGEMENT
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`Moving Defendants reconfirm in Reply that their motion to dismiss for failure to state a
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`claim is procedurally improper and lacking in merit. In attempting to explain why their
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`subsidiaries answered, Moving Defendants assert that “unlike Broadcom Ltd. and Avago Ltd.—
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`the answering defendants are not foreign holding companies with no employees and no
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`involvement with any of the accused products.” D.I. 53 at 5. That argument ignores the black
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`letter law that, on a Rule 12(b)(6) motion to dismiss, the allegations of the complaint must be
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`accepted as true and all inferences must be construed in favor of the non-moving party. Moving
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`Defendants’ Rule 12(b)(6) motion is not based on any other grounds, and they do not seriously
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`contest that if their premise is not accepted—and it should not be, not the least because IP Bridge
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`has demonstrated its falsity—IP Bridge’s Amended Complaint properly states a claim for relief.
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`IP Bridge requests that the Court deny Moving Defendants’ motion to dismiss.
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`CONCLUSION
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`5
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 8 of 10 PageID #: 3017
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`Dated: July 22, 2016
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`By: /s/ Andrew T. Radsch
` Melissa R. Smith
`GILLAM & SMITH, LLP
`TX State Bar No. 24001351
`303 S. Washington Ave.
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`melissa@gillamsmithlaw.com
`
` Andrew N. Thomases
`(CA Bar No. 177339)
`(Eastern District of Texas Member)
`Andrew T. Radsch
`(CA Bar No. 303665)
`(Eastern District of Texas Member)
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Telephone: (650) 617-4000
`Facsimile: (650) 617-4090
`andrew.thomases@ropesgray.com
`andrew.radsch@ropesgray.com
`
`Han Xu
`(NY Bar No. 5089438)
`(Eastern District of Texas Member)
`ROPES & GRAY LLP
`JP Tower, 30th Floor
`2-7-2, Marunouchi
`Chiyoda-ku , Tokyo 100-7030, Japan
`Telephone: +81 3 6259 3500
`Facsimile: +81 3 6259 3501
`han.xu@ropesgray.com
`
`Alexander E. Middleton
`(NY Bar No. 4797114)
`(Eastern District of Texas Member)
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`(212) 596-9000
`(212) 596-9090
`alexander.middleton@ropesgray.com
`
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 9 of 10 PageID #: 3018
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`Attorneys for Godo Kaisha IP Bridge
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`7
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`Case 2:16-cv-00134-JRG-RSP Document 57 Filed 07/22/16 Page 10 of 10 PageID #: 3019
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have consented
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`to electronic service are being served with a copy of this document via the Court’s CM/ECF system
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`per Local Rule CV-5(a)(3) on July 22, 2016.
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` /s/ Melissa R. Smith
`Melissa R. Smith
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`8
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