Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 1 of 16 PageID #: 3295
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT, LLC
`
`
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI DEVICE
`(DONGGUAN) CO., LTD.
`
`Defendants.
`
`LEAD CASE NO. 2:17-cv-513-JRG
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`MEMBER CASE NO. 2:17-cv-515-JRG
`
`
`JURY TRIAL DEMANDED
`
`AGIS SOFTWARE DEVELOPMENT, LLC
`
`Plaintiff,
`
`v.
`
`LG ELECTRONICS, INC.
`
`Defendant.
`
`
`
`DEFENDANT LG ELECTRONICS, INC.’S REPLY IN RESPONSE TO PLAINTIFF’S
`OPPOSITION TO DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL
`JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER VENUE TO THE
`NORTHERN DISTRICT OF CALIFORNIA
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`
`

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`Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 2 of 16 PageID #: 3296
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`
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`I.
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`II.
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`III.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .............................................................................................................. 1
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`PERSONAL JURISDICTION OVER LGEKR IS IMPROPER ........................................ 2
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`THE EXERCISE OF PERSONAL JURISDICTION OVER LGEKR WOULD BE
`CONTRARY TO CONCEPTS OF FAIR PLAY AND SUBSTANTIAL
`JUSTICE ............................................................................................................................. 5
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`IV.
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`NDCA IS CLEARLY A MORE CONVENIENT FORUM ............................................... 7
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`i
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`Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 3 of 16 PageID #: 3297
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`
`CASES
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`TABLE OF AUTHORITIES
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`Page(s)
`
`AFTG-TG, LLC v. Nuvoton Tech. Corp.,
`689 F.3d 1358 (Fed. Cir. 2012)..................................................................................................2
`
`Asahi Metal Indus. Co. v. Super Ct. of Cal., Solano Cty.,
`480 U.S. 102 (1987) ...........................................................................................................2, 3, 4
`
`ATEN Int’l Co. Ltd. v. Emine Tech. Co., Ltd.,
`261 F.R.D. 112 (E.D. Tex. 2009)...............................................................................................4
`
`Burger King Corp. v. Rudzewicz,
`105 S. Ct. 2174 (1985) ...............................................................................................................7
`
`Commissariat A L’Energie Atomique v. Chi Mei Optoelectronics Corp.,
`395 F.3d 1315 (Fed. Cir. 2005)..................................................................................................2
`
`Dainippon Screen Mfg. Co., Ltd. v. CFMT, Inc.,
`142 F.3d 1266 (Fed. Cir. 1998)..................................................................................................9
`
`Groupchatter, LLC v. Itron, Inc.,
`No. 6:15-cv-900 JRG-JDL, 2016 WL 2758480 (E.D. Tex. May 12, 2016) ..............................8
`
`IDQ Operating, Inc. v. Aerospace Commc’ns Holdings Co., Ltd.,
`No. 6:15-cv-781, 2016 WL 5349488 (E.D. Tex. June 10, 2016) ..............................................4
`
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)................................................................................................10
`
`In re Morgan Stanley,
`417 F. App’x 947 (Fed. Cir. Apr. 6, 2011) ..............................................................................10
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .....................................................................................................9
`
`Jacobs Chuck Mfg. Co. v. Shandong Weida Mach. Co.,
`No. 2:05-cv-185, 2005 WL 3299718 (E.D. Tex. Dec. 5, 2005) ................................................5
`
`MHL Tek, LLC v. Nissan Motor Co.,
`No. 2:07-cv-289, 2008 WL 910012 (E.D. Tex. Apr. 2, 2008) ..............................................4, 5
`
`Rotatable Techs., LLC v. Lennox Indus., Inc.,
`No. 2:13-cv-00110-JRG, D.I. 19 (E.D. Tex. Mar. 7, 2014) .......................................................9
`
`Shoemake v. Union Pacific R.R. Co.,
`233 F. Supp. 2d 828 (E.D. Tex. 2002) .......................................................................................9
`
`
`
`ii
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`Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 4 of 16 PageID #: 3298
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`World-Wide Volkswagen Corp. v. Woodson,
`444 U.S. 286 (1980) ...................................................................................................................6
`
`Zenith Elecs. LLC v. Sony Corp.,
`No. 5:10–CV–184–DF, 2011 WL 13217851 (E.D. Tex. Apr. 25, 2011) ................................10
`
`Zoch v. Daimler, AG,
`No. 6:16-cv-00057-RWS, 2017 WL 2903264 (E.D. Tex. May 16, 2017) ............................5, 6
`
`OTHER AUTHORITIES
`
`Federal Rule of Civil Procedure 12(b)(2) ........................................................................................7
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`
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`iii
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`Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 5 of 16 PageID #: 3299
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`
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`I.
`
`INTRODUCTION
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`There is no pleading allegation or evidence that LGEKR is responsible for, established,
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`or purposefully contributed to the actual distribution of the Accused Devices within the United
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`States, let alone Texas. And, AGIS does not dispute that, under any traditional analysis of
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`general or specific personal jurisdiction, there is no jurisdiction here over the foreign Korean
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`entity LGEKR that has no presence or activity in Texas. Instead, AGIS solely rests on an
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`extension of the stream of commerce test as an “independent basis” for personal jurisdiction,
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`simply asserting that the presence of products in Texas must mean that LGEKR possesses the
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`requisite awareness. On this record, the unilateral U.S. sales acts of non-party California-based
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`LGEMU – i.e., generally selling to retailers in the U.S. – does not justify exercising jurisdiction
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`over LGEKR under any stream of commerce test.
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`Regardless, the exercise of personal jurisdiction here does not comport with fairness or
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`substantial justice. AGIS does not dispute that it is a recently-incorporated shell entity controlled
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`by Florida residents and set up to assert patents in Texas that were previously owned by a related
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`Florida corporation who has litigated in California. AGIS offers no basis to conclude that a
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`foreign Korean company should, in fairness, have any expectation that, on these patents, a
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`Florida company would choose to not sue the actual California-based companies that import and
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`distribute products to retailers who in turn sell them in the United States. Nor would Korea-
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`based LGEKR be expected to reasonably anticipate being sued in Texas on patents which are
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`asserted against software on the products that is supplied by California-based Google. Instead, in
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`order to avoid suing the U.S. companies in California, as required by the venue rules, AGIS
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`assigned the patents to a Texas shell company that then sued only the foreign manufacturer.
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`AGIS’s effort to manufacture a claim from Texas, but try to avoid California venue by
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`purposefully not naming any of the U.S.-based companies that actually make the accused
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`1
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`software or actually distribute the products for sale in the U.S., is not fair play.
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`Even if a stream of commerce theory could be supported by nothing more than the
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`placement of products, and even if the purposeful avoidance of venue laws could comport with
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`any notion of fair play, the fact remains that the relevant evidence and witnesses are not in
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`Texas, and that NDCA is clearly more convenient. AGIS’s own infringement contentions –
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`expressly centered on the functionality of non-party Google applications – contradict AGIS’s
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`transfer-driven claim that this case is “really” about the physical devices sold by LGEKR and not
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`the Google software installed on them. AGIS’s claims of contacts with this District only confirm
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`that its business operations are based in Florida and any witnesses or documents in this District
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`are either irrelevant to this case and/or were carried by AGIS into Texas to create a claim. And,
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`AGIS’s argument regarding judicial economy turns the venue analysis on its head, and suggests
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`that AGIS should be allowed to proceed in an improper and inconvenient forum simply because
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`it has sued multiple defendants in the wrong place. That is not the law. Accordingly, LGEKR
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`respectfully requests that this case be dismissed or transferred to NDCA.
`
`II.
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`PERSONAL JURISDICTION OVER LGEKR IS IMPROPER
`
`AGIS concedes that personal jurisdiction over LGEKR in Texas is improper under the
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`traditional framework for analyzing general or specific jurisdiction. (D.I. 68 at 9.) It instead
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`relies solely on the stream of commerce theory as “[a]n ‘independent basis’ for personal
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`jurisdiction.” (See generally D.I. 68 at 9, 11-16.) AGIS fails, however, to establish a prima
`
`facie showing that Korea-based LGEKR is subject to stream-of-commerce jurisdiction under
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`either Justice O’Connor’s or Justice Brennan’s test in Asahi Metal Indus. Co. v. Super Ct. of
`
`Cal., Solano Cty., 480 U.S. 102, 112, 117 (1987). See AFTG-TG, LLC v. Nuvoton Tech. Corp.,
`
`689 F.3d 1358 (Fed. Cir. 2012); Commissariat A L’Energie Atomique v. Chi Mei Optoelectronics
`
`Corp., 395 F.3d 1315, 1321-22 (Fed. Cir. 2005).
`
`
`
`2
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`

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`The O’Connor Test. The proper application of the stream of commerce test requires,
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`according to Justice O’Connor, “[t]he placement of a product into the stream of commerce” and
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`“[a]dditional conduct of the defendant [] [to] indicate an intent or purpose to serve the market in
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`the forum State, for example, [by] designing the product for the market in the forum State,
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`advertising in the forum State, establishing channels for providing regular advice to customers in
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`the forum State, or marketing the product through a distributor who has agreed to serve as the
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`sales agent in the forum State.” Asahi, 480 U.S. at 112.
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`Here, it is undisputed that LGEKR has no relevant contacts with EDTX, let alone the
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`type of “additional contacts” that can support stream-of-commerce-based jurisdiction under
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`Justice O’Connor’s test. LGEKR does not manufacture, use, test, advertise, market, sell, offer to
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`sell, trade, import, package, or distribute any products, let alone the Accused Devices, in the
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`United States. (D.I. 46 at 5-6, 13; D.I. 46-1, ¶ 13.) And, LGEKR has no distribution agreements
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`or business contracts with any individuals or entities in Texas with respect to the distribution of
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`the Accused Devices. (D.I. 46 at 13-14; D.I. 46-1, ¶ 13.) AGIS does not challenge any of these
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`facts.1 AGIS does not offer any evidence that LGEKR directs or otherwise oversees non-party
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`LGEMU’s distribution of the accused products to non-party retailers who might in turn sell them
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`in Texas. Rather, it argues that the fact that products end up in a forum state is sufficient
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`evidence of knowledge or foreseeability of LGEKR that the products that non-party LGEMU
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`imported into the United States will enter Texas. (D.I. 68 at 12-15.) AGIS does not show that it
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`meets the O’Connor test; instead it rewrites the test into something it is not.
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`The Brennan Test. Justice Brennan’s stream of commerce framework finds placement
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`1 Because AGIS does not dispute these facts, the allegation that LGEKR “does business in
`Texas, directly or through intermediaries and offers its products and/or services, including those
`accused herein of infringement, to customers and potential customers located in Texas, including
`in the judicial Eastern District of Texas” cannot be taken as true. (515 D.I. 1, ¶¶ 2, 4.)
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`3
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`

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`of a product into the stream of commerce sufficient for personal jurisdiction so long as “a
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`participant in [the] process is aware that the final product is being marketed in the forum State.”
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`Asahi, 480 U.S. at 117 (emphasis added). Again, however, AGIS offers nothing but a conclusion
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`that LGEKR must be aware. But, the cases AGIS relies upon to infer awareness or foreseeability
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`are distinguishable. (D.I. 68 at 11-15.) Said differently, finding personal jurisdiction here would
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`be a step further than every case that AGIS has cited.
`
`For example, in IDQ Operating, Inc. v. Aerospace Commc’ns Holdings Co., Ltd., No.
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`6:15-cv-781, 2016 WL 5349488, at *3-4 (E.D. Tex. June 10, 2016), the defendant deliberately
`
`sold its products directly to a national retailer with a sales outlet in Texas and admittedly knew
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`that its products would reach customers there. Similarly, in ATEN Int’l Co. Ltd. v. Emine Tech.
`
`Co., Ltd., 261 F.R.D. 112 (E.D. Tex. 2009), the foreign defendant itself provided its products to a
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`U.S. retailer with sales outlets in Texas. In both of these cases, there was a direct link between
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`the named defendant and the retailers that took action to provide products for sale in Texas.
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`Here, non-party California-based LGEMU provides the Accused Devices directly to the retailers
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`it selects. Whether there is personal jurisdiction over LGEMU is not a question presented here,
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`because, even if there was, AGIS would have to sue LGEMU in California under the venue
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`rules. These cases do not suggest that AGIS can reach through LGEMU and impute its actions
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`to LGEKR, but nevertheless omit LGEMU from the caption so that AGIS can avoid California,
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`but still claim jurisdiction over the foreign company that has no direct link to any retailer who
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`sells products that end up in Texas and no evidence of involvement in the distribution process.
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`Similarly, in MHL Tek, LLC v. Nissan Motor Co., No. 2:07-cv-289, 2008 WL 910012, at
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`*1 (E.D. Tex. Apr. 2, 2008), the U.S.-based defendant, BMWMC, could not evade stream-of-
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`commerce jurisdiction by knowingly selling the accused products to a non-party international
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`4
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`intermediary, BMWAG, who then resent them back into the U.S. to another U.S.-based
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`defendant, BMWNA, who distributed them into Texas. (See also Lee Decl., Ex. 3 at 1-2.) The
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`Court in MHL Tek did not decide whether BMWAG – the international entity – would be subject
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`to personal jurisdiction in Texas, which would be the parallel inquiry to this matter. Thus, MHL
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`Tek is of no help to AGIS, especially where, unlike in MHL Tek, AGIS intentionally seeks to
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`avoid venue requirements by omitting relevant U.S. entities such as LGEMU or Google. Finally,
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`the facts supporting personal jurisdiction over the defendant in Jacobs Chuck Mfg. Co. v.
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`Shandong Weida Mach. Co., No. 2:05-cv-185, 2005 WL 3299718 (E.D. Tex. Dec. 5, 2005), are
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`narrow and inapposite. The foreign defendant there admittedly branded the accused component
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`during manufacturing with a trademark that it knew would be supplied to and sold by an
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`exclusive national retailer in the United States. Id. at *4. Here, AGIS points to no evidence that
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`LGEKR manufactures the Accused Devices under similar branding directives or that knowledge
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`of California-based LGEMU’s importation and distribution strategy for such devices can be
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`imputed to LGEKR. Cf. Zoch v. Daimler, AG, No. 6:16-cv-00057-RWS, 2017 WL 2903264, at
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`*5 (E.D. Tex. May 16, 2017) (explaining that “‘a defendant’s placing of its product into the
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`stream of commerce with the knowledge that the product will be used in the forum state is
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`enough to constitute minimum contacts,’ in the Fifth Circuit [] ‘but [t]he defendant’s contacts
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`must be more than ‘random, fortuitous, or attenuated, or of the unilateral activity of another
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`party or third person.’”) (emphasis added). For these reasons, AGIS’s citations do not establish
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`that stream-of-commerce jurisdiction over LGEKR is appropriate under the facts of this case.
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`III. THE EXERCISE OF PERSONAL JURISDICTION OVER LGEKR WOULD BE
`CONTRARY TO CONCEPTS OF FAIR PLAY AND SUBSTANTIAL JUSTICE
`
`Even if the bare placement of a product in the stream of commerce is sufficient to support
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`jurisdiction, exercising jurisdiction here does not comport with fairness or reasonableness.
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`5
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`

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`AGIS’s presence in Texas was created for purposes of bringing patent cases. Specifically, AGIS
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`does not dispute that it was incorporated only a few weeks before filing this case. AGIS does not
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`dispute that it acquired the Patents-In-Suit from the related company headquartered in Florida
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`(i.e., AGIS, Inc.). AGIS does not dispute that it is managed or owned by Florida residents, one
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`of whom is a named inventor. AGIS does not dispute that Texas’s interest in this case is no
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`greater than any other state’s interest, including California’s. (See D.I. 46 at 16.) AGIS does not
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`dispute that it has accused only LGEKR, a Korean company, rather than the California LG
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`entities who are known to be responsible for distribution of the accused devices throughout the
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`United States, in order to avoid TC Heartland and California as the most convenient and proper
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`venue for the relief it seeks. (Id. at 16-17.)
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`Analogous to the facts in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296-
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`99 (1980), these patents made their way to Texas in order to create a claim from Texas, even
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`though they were previously owned by the related entity in Florida who litigated there and in
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`California. And, to avoid venue requirements, AGIS elected not to sue any of the California-
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`based U.S. companies actually involved in development of the accused software or distribution
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`of the Accused Devices. Substantial justice and fair play would dictate that – if AGIS was
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`actually interested in relief, rather than venue games, AGIS would bring this lawsuit in
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`California, where the U.S. companies actually involved (e.g., Google or LGEMU) are located.
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`AGIS’s actions in seeking to create a claim from Texas by manipulating its own corporate
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`identity and omitting relevant parties undermine any conclusion that its claims of jurisdiction
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`over Korea-based LGEKR comports with fair play and substantial justice. Simply put, AGIS’s
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`alleged interest in obtaining effective and convenient relief in the forum, and by extension
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`Texas’s interest in adjudicating this dispute, (D.I. 68 at 16) is nothing other than a venue-
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`6
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`
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`manipulation creation. On the facts of this case, this is an instance where LGEKR’s burden
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`outweighs the plaintiff’s and the state’s interest. Burger King Corp. v. Rudzewicz, 105 S. Ct.
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`2174, 2184 (1985). Accordingly, LGEKR respectfully requests that this case be dismissed
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`pursuant to Federal Rule of Civil Procedure 12(b)(2).
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`IV. NDCA IS CLEARLY A MORE CONVENIENT FORUM
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`Consistent with the undisputed facts, NDCA is also clearly more convenient.
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`Convenience of the Witnesses. NDCA is a more convenient forum for all known and
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`likely third-party witnesses, particularly Google, which develops the software actually accused in
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`this matter.2 AGIS does not contest that LGEKR has identified key Google witnesses and
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`documents within NDCA.3 Instead, AGIS contradictorily asserts that its infringement claims are
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`based on LGEKR’s hardware and then asserts that information regarding the function of
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`Google’s software is publicly available. (D.I. 68 at 2, 19, 22, 24 n.11.) Neither is true. AGIS
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`mentions Google no less than 54 times in its Complaint, and its claims require only a generic
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`“device” with standard smartphone attributes, e.g., “display.” (515 D.I. 1.) The only
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`particularized functionality identified in AGIS’s infringement contentions are two Google
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`software applications – Find My Device and Location Sharing. (Lee Decl., Ex. 1.)4 AGIS’s
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`initial disclosures expressly state that “the LG Accused Products infringe [the Patents-In-Suit]
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`because they include, among other things, at least the features implemented in [the accused
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`Google applications]” and that the devices are “programmed, at least through . . . Google Maps,
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`2 AGIS’s assertions that mobile carriers (such as AT&T, Sprint and Verizon) “will provide key
`information about the value of the accused [Google] software” (D.I. 68 at 7, 21, 25) is purely
`self-serving speculation, particularly because they have no responsibility for the development
`and maintenance of those applications, and AGIS offers zero proof to suggest otherwise.
`3 AGIS also speculates that Google’s Austin office -- located outside this District -- has
`personnel with information relevant to its infringement claims. To the contrary, there are no
`relevant Google witnesses in Austin for the accused Google applications. (D.I. 74-8; D.I. 74-9.)
`4 The accused applications are not open source as AGIS alleges (D.I. 68 at 19), rather they are
`highly confidential and non-public. (D.I. 74-8; D.I. 74-9.)
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`
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`7
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`

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`and/or Find My Device, to facilitate the communication of location information.” (Id., Ex. 2 at
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`10-15 (emphasis added).) AGIS cannot base its entire case on Google’s software and now claim
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`that Google’s witnesses are irrelevant.
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`Other relevant witnesses likewise are not located in this District, and are primarily
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`located in or closer to NDCA than to EDTX. LGEKR’s employees with knowledge related to
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`the Accused Devices are located outside the United States and primarily in South Korea. (D.I.
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`46 at 5.) LGEKR demonstrated that business operations for importing, testing, quality
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`management, marketing, offering for sale, and selling the Accused Devices are performed by
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`non-party California subsidiaries. (Id. at 5-6.) LGEKR specifically identified two California
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`witnesses (and their respective teams) – Cecilia Son and Michael Henson – who have knowledge
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`concerning certification to ensure that the Accused Devices adhere to the Android OS
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`compatibility requirements and quality assurance. (See D.I. 46-1, ¶¶ 8-9; D.I. 46-2, Ex. 1.)
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`AGIS’s opposition also proves that its party witnesses are located outside this District.
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`(D.I. 68 at 4-6.) These witnesses’ alleged willingness to travel to Texas “carries little weight”
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`and does not negate the inconvenience for Defendants’ identified witnesses. Groupchatter, LLC
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`v. Itron, Inc., No. 6:15-cv-900 JRG-JDL, 2016 WL 2758480, at *4 (E.D. Tex. May 12, 2016).
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`Indeed, confirming that AGIS is a litigation creation, AGIS seeks to anchor this case in
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`EDTX by identifying AGIS, Inc. witnesses that are effectively irrelevant to this case and the
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`transfer analysis. AGIS identifies Eric Armstrong as a former AGIS, Inc. software developer
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`who: (1) played a “crucial role in developing” the LifeRing and ASSIST product solutions for
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`AGIS, Inc.; and (2) possesses knowledge about the “inventions covered by the Patents-in-suit
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`that will be relevant to this action.” (D.I. 68-1, ¶¶ 15-16; D.I. 68 at 5.) But, AGIS’s
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`infringement contentions confirm that it “does not intend to rely on the assertion that its own
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`8
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`apparatuses . . . practice the claimed inventions,” meaning Mr. Armstrong’s development efforts
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`related to LifeRing and ASSIST are immaterial to this case.5 (Lee Decl., Ex. 1 at 12 (emphasis
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`added).) Mr. Armstrong also is not a named inventor on the Patents-In-Suit, and thus can’t
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`possess more relevant knowledge regarding the claimed inventions than the inventors
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`themselves.6 Similarly, Mr. Sandel Blackwell, the President of AGIS Inc. working from AGIS
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`Inc. offices in Kansas and Florida, is alleged to have knowledge regarding “the development of
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`the software included in the LifeRing and ASSIST solutions” – which are irrelevant to this case.
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`(D.I. 68-1, ¶¶ 18; see also D.I. 68 at 5.). David Sietsema’s relevance to this case is similarly
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`tethered to the irrelevant LifeRing and ASSIST products for AGIS, Inc. and, regardless, is not in
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`this District. See D.I. 68-1, ¶ 17; D.I. 68 at 4-5; Rotatable Techs., LLC v. Lennox Indus., Inc.,
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`No. 2:13-cv-00110-JRG, D.I. 19 (E.D. Tex. Mar. 7, 2014).7
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`Finally, AGIS’s arguments regarding the shortest, straight-line distance and inevitable
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`travel for any LGEKR witnesses from South Korea are legally flawed. (D.I. 68 at 4-5, 24.)
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`Controlling precedent directs courts to consider actual travel logistics, including flight times –
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`and not distance-as-the-crow-flies. See In re Volkswagen AG, 371 F.3d 201, n.3 (5th Cir. 2004).
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`Moreover, courts in this District have refused to disregard “that [Asia] is closer to [NDCA] than
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`5 Any argument that this statement only applies to AGIS Software Development LLC and not to
`AGIS, Inc. is misguided gamesmanship. AGIS should not be able to rely upon AGIS, Inc.’s
`products to oppose transfer, while using its corporate form to shield itself from the requirements
`of PLR 3-1(f). See D.I. 36-7, ¶¶ 2-6, 10, 13 & Exs. 1-5, 9, 11; Dainippon Screen Mfg. Co., Ltd.
`v. CFMT, Inc., 142 F.3d 1266, 1271 (Fed. Cir. 1998). Indeed, AGIS refers to AGIS, Inc.’s
`employees, like Mr. Sietsema, as party witnesses throughout its opposition brief. (D.I. 68 at 4.)
`AGIS’s corporate structure is a venue manipulation strategy, not substantial justice.
`6 Undercutting AGIS’s claims here, Mr. Armstrong was not disclosed and did not testify in the
`previous litigation involving related patents and the same AGIS product solutions. (D.I. 74-5;
`D.I. 74-6.)
`7 Regarding Mr. McAlexander (D.I. 68 at 6), AGIS cannot bolster ties to Texas by hiring a local
`expert who, at this early stage, is “unlikely to have expended a great deal of effort on [his]
`testimony.” Shoemake v. Union Pacific R.R. Co., 233 F. Supp. 2d 828, 833 (E.D. Tex. 2002).
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`9
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`Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 14 of 16 PageID #: 3308
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`[EDTX]” in the transfer analysis. See Zenith Elecs. LLC v. Sony Corp., No. 5:10–CV–184–DF,
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`2011 WL 13217851, at *8 (E.D. Tex. Apr. 25, 2011).
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`Location of Evidence. AGIS’s lease on its Marshall office commenced less than three
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`weeks before this action (see, e.g., D.I. 68-1, ¶ 9), and thus any evidence at that location clearly
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`was moved there in anticipation of litigation and is irrelevant to transfer.8 See In re Hoffmann-
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`La Roche Inc., 587 F.3d 1333, 1336-37 (Fed. Cir. 2009). By contrast, LGEKR’s relevant
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`documents are primarily located in South Korea, and those of its subsidiaries and key third-party
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`witness Google are located in NDCA and California. (See D.I. 46 at 5-8.)
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`Compulsory Process. AGIS additionally argues that this factor disfavors transfer
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`because there are purportedly relevant witnesses from mobile carriers such as Verizon. (D.I. 68
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`at 26.) With the exception of Mr. Armstrong, none of AGIS’s purported third-party witnesses
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`are located in this District. And, as mentioned above, the mobile carriers and Mr. Armstrong’s
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`relevance to this case are largely speculative. By contrast, NDCA has absolute subpoena power
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`over third-party witnesses LGEKR identified, which AGIS does not dispute. (D.I. 46 at 21-22.)
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`Judicial Economy. AGIS argues that transfer should be denied in the interest of judicial
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`economy because it has filed other infringement actions in this District. This Court and the
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`Federal Circuit repeatedly have “rejected arguments that the preservation of judicial economy
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`should preclude transfer to a far more convenient venue” when other factors weigh in favor of
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`transfer. In re Morgan Stanley, 417 F. App’x 947, 949-50 (Fed. Cir. Apr. 6, 2011). The
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`“efficiencies” claimed by AGIS exist only because AGIS filed this and other lawsuits in this
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`District without proper basis, and, in fact have led to inefficiency where every defendant sued by
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`AGIS has or will seek transfer, creating judicial work that could and should have been avoided.
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`8 As recently as 2014, Mr. Beyer admitted that nearly all of AGIS Inc.’s documents, including
`technical and financial documents were in Florida and not in Kansas. (D.I. 74-3 ¶¶ 8-12, 17-18.)
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`10
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`Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 15 of 16 PageID #: 3309
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`Dated: January 5, 2018
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`Respectfully submitted,
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`/s/ J. Mark Mann
`J. Mark Mann
`SBN: 12926150
`mark@themannfirm.com
`G. Blake Thompson
`SBN: 24042033
`blake@themannfirm.com
`MANN TINDEL THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Tel: 903-657-8540
`
`Michael A. Berta
`Michael.berta@apks.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`Three Embarcadero Center
`10th Floor
`San Francisco, CA 94111-4024
`Tel: 415-471-3000
`
`James S. Blackburn
`James.blackburn@apks.com
`Nicholas H. Lee
`Nicholas.lee@apks.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`777 South Figueroa Street
`44th Floor
`Los Angeles, CA 90017-5844
`Tel: 213-243-4000
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`ATTORNEYS FOR DEFENDANT
`LG ELECTRONICS, INC.
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`Case 2:17-cv-00513-JRG Document 77 Filed 01/05/18 Page 16 of 16 PageID #: 3310
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on January 5, 2018, a true and correct copy of
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`the foregoing was served to the parties counsel of record via electronic mail pursuant to Local
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`Rule CV-5(d).
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`/s/ J. Mark Mann
`J. Mark Mann
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`12
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