Case 2:17-cv-00517-JRG Document 46-2 Filed 12/29/17 Page 1 of 5 PageID #: 512
`
`
`AGIS SOFTWARE DEVELOPMENT, LLC,
`
`
`Plaintiff,
`
`
`
`
`v.
`
`
`
`
`Case No. 2:17-cv-517-JRG
`
`JURY TRIAL DEMANDED
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`DECLARATION OF VINCENT J. RUBINO, III IN OPPOSITION TO
`DEFENDANTS ZTE (TX) INC. AND ZTE (USA) INC.’S
`MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
`FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, TO TRANSFER
`
`I, Vincent J. Rubino III, being duly sworn, hereby depose and state as follows:
`
`
`
`ZTE CORPORATION, ET AL.,
`
`
`Defendants.
`
`1.
`
`I am a member of Brown Rudnick LLP, counsel of record for Plaintiff AGIS
`
`Software Development LLC (“AGIS”). I am a member of the Bar of the State of New York and
`
`have been admitted to practice in the United States District Court for the Eastern District of
`
`Texas. I make this declaration in opposition to the motion to dismiss Plaintiff’s Amended
`
`Complaint for improper venue or in the alternative to transfer (Dkt. No. 38) filed by Defendants
`
`ZTE (TX) Inc. (“ZTX”) and ZTE (USA) Inc.’s (“ZTA” together with ZTX, “Defendants. The
`
`statements in this declaration are based upon my review of information obtained from public
`
`records, except where noted.
`
`2.
`
`Attached hereto as Exhibit 1 is a true and correct copy of distances calculated “as
`
`the crow flies” using the website: http://tjpeiffer.com/crowflies.html, between:
`
`1) Lenexa, Kansas to 100 East Houston Street, Marshall, Texas;
`
`

`

`Case 2:17-cv-00517-JRG Document 46-2 Filed 12/29/17 Page 2 of 5 PageID #: 513
`
`2) Lenexa, Kansas to San Francisco, California;
`3) Jupiter, Florida to 100 East Houston Street, Marshall, Texas;
`4) Jupiter, Florida to San Francisco, California;
`5) Allen, Texas to 100 East Houston Street, Marshall, Texas
`6) Allen, Texas and San Francisco, California;
`7) Redmond, Washington to 100 East Houston Street, Marshall, Texas;
`8) Redmond, Washington to San Francisco, California;
`9) Overland, Kansas to 100 East Houston Street, Marshall, Texas;
`10) Overland, Kansas to San Francisco, California;
`11) New York City to 100 East Houston Street Marshall, Texas;
`12) New York City to San Francisco, California;
`13) Dallas, Texas to 100 East Houston Street, Marshall, Texas;
`14) Dallas, Texas to San Francisco, California;
`15) Austin, Texas to 100 East Houston Street, Marshall, Texas; and
`16) Austin, Texas to San Francisco, California.
`Attached hereto as Exhibit 2 is a true and correct copy of an article by Kate
`3.
`
`Weidaw for KXAN published on September 19, 2017, entitled “Google opens new downtown
`
`Austin office,” as accessed on December 12, 2017 at http://kxan.com/2017/09/19/google-
`
`opening-new-downtown-austin-office/.
`
`4.
`
`Attached hereto as Exhibit 3 is a true and correct copy of an article by Cindy
`
`Widner for Curbed Austin published on September 25, 2017, entitled “Peek inside Google’s new
`
`Austin offices-now with more photos (and info)!” as accessed on December 12, 2017, at
`
`https://austin.curbed.com/2017/9/21/16346740/google-austin-office-new-photos-downtown.
`
`5.
`
`Based on my personal knowledge as counsel to AGIS, AGIS has retained Joseph
`
`C. McAlexander to serve as an expert witness in support of this patent infringement action.
`
`Mr. McAlexander is located at McAlexander Sound, Inc., 101 W. Renner Road, Suite 350,
`
`Richardson, Texas 5082-2016.
`
`
`
`2
`
`

`

`Case 2:17-cv-00517-JRG Document 46-2 Filed 12/29/17 Page 3 of 5 PageID #: 514
`
`6.
`
`Third-party cellular carriers including AT&T, Sprint, and Verizon are likely to
`
`possess information relating to the consumer demand and market value of the features enabled
`
`by the Patents-in-Suit, as well as consumer surveys and marketing information regarding demand
`
`for particular software applications and features. According to AT&T’s website, AT&T is
`
`headquartered in Dallas, Texas. See e.g., https://investors.att.com/resources/contacts. According
`
`to Sprint’s website, Sprint is headquartered in Overland Park, Kansas. See e.g.,
`
`https://www.sprint.com/en/support/contact-us.html#tab-business. According to Verizon’s
`
`website, Verizon is headquartered in Basking Ridge, New Jersey. See e.g.,
`
`http://www.verizon.com/about/our-company/verizon-corporate-headquarters. AGIS plans to
`
`serve subpoenas on employees of least these three third-party companies.
`
`7.
`
`Attached hereto as Exhibit 4 is a true and correct copy of the LinkedIn Profile of
`
`Bahadir 'Baha' Koseli available at https://www.linkedin.com/in/bahadir-baha-%E2%80%8B-
`
`koseli-ms-53834118/.
`
`8.
`
`Attached hereto as Exhibit 5 is a true and correct copy of a LinkedIn Profile of
`
`Keith Gladhill available at https://www.linkedin.com/in/keith-gladhill-0a002b89/.
`
`9.
`
`Attached hereto as Exhibit 6 is a true and correct copy of U.S. District Courts
`
`Median Time Intervals from Filing to Disposition of Civil Cases Terminated, by District and
`
`Method of Disposition, During 12 Month Period Ending March 31, 2017, available at
`
`http://www.uscourts.gov/sites/default/files/data_tables/fjcs_c5_0331.2017.pdf.
`
`10.
`
`Attached hereto as Exhibit 7 is a true and correct copy of excerpts of the U.S.
`
`District Courts- Combined Civil and Criminal Federal Court Management Statistics for the
`
`twelve-month period ending March 31, 2017, available at
`
`http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0331.2017.pdf.
`
`
`
`3
`
`

`

`Case 2:17-cv-00517-JRG Document 46-2 Filed 12/29/17 Page 4 of 5 PageID #: 515
`
`11.
`
`Attached hereto as Exhibit 8 is a true and correct copy of a ZTE document
`
`stamped “ZTE-FRCT0000544” which has been previously filed in X-Mobile Technologies LLC
`
`v. ZTE Corp. et al, Case No. 4:17-cv-00696, No. 27-2 (E.D.Tex. Dec. 7, 2017) and Am. GNC
`
`Corp. v. ZTE Corp., No. 4:17-cv-00620-ALM-KPJ, 2017 WL 5163605, at *3-4 (E.D. Tex. Oct.
`
`4, 2017). The document stamped “ZTE-FRCT0000544” includes images of call center
`
`employees wearing apparel with ZTE logos and states: “ZTE established a local call center with
`
`iQor in Plano, TX in early 2016. The call center has 60+ dedicated ZTE representatives on
`
`customer service to build brand loyalty with exceptional customer service.”
`
`12.
`
`Attached hereto as Exhibit 9 is a true and correct copy of excerpts from a Motions
`
`Hearing before the Honorable Roy S. Payne on September 1, 2017 in Am. GNC Corp. v. ZTE
`
`Corp., No. 4:17-cv-00620-ALM-KPJ (E.D. Tex.) (also filed in Fractus, S.A. v. ZTE Corporation,
`
`et al, 2_17-cv-00561, No. 30-7 (E.D.Tex. Oct. 10, 2017). At page 17, lines 6-21 of the
`
`transcript, counsel for ZTE (USA), Inc. states: “I don’t dispute that the PowerPoint says that ZTE
`
`established the call center. You know, it’s established in partnership with the third party.
`
`There’s ZTE representatives that are – that do come, not every day, but do make appearances and
`
`would work with the third party representatives.”
`
`13.
`
`Attached hereto as Exhibit 10 is a true and correct copy of an online resume
`
`document by “Charles D. Crowe” available at
`
`https://www.postjobfree.com/resume/ac1iff/powershell-dns-tcp-chat-ip-fort-worth-tx and
`
`previously filed in X-Mobile Technologies LLC v. ZTE Corporation, et al, 4_17-cv-00696, No.
`
`27-4 (E.D.Tex. Dec. 7, 2017). The underlying document states that Charles D. Crowe worked
`
`for “IQOR (ZTEUSA)” in “Plano, TX” from “2015 to 2016” The underlying document states
`
`that Charles D. Crowe worked as a “Support Technician – Subject Matter Expert (SME)” and
`
`
`
`4
`
`

`

`Case 2:17-cv-00517-JRG Document 46-2 Filed 12/29/17 Page 5 of 5 PageID #: 516
`
`Mr. Crowe listed the following responsibilities: “VIP Specialist: Showcase new flagship Android
`
`phones. Had the honor of taking the first call in USA for ZTE;” “Knowledge Base Writer:
`
`Research, draft, publish, and approve articles pertaining to ZTE devices, policies, and procedures
`
`for public and internal use;” “Training material Writer: Write new training presentations that are
`
`needed outside of the curriculum provided by ZTE;” “Ongoing training: Implement on the job
`
`trainings from presentations or perform one-on-one sessions with outlier agents;” “Seller Cloud
`
`Sales: Take payments over the phone using an online POS system;” “Live Chat: Provide world
`
`class customer service though a chat portal. Provide troubleshooting assistance, warranty
`
`service, and product information;” “Floor Support: Assist agents throughout the production floor
`
`with anything needed to resolve customer concerns on the call or chat;” “Escalations: Research
`
`issues related to customer technical concerns where the agent is not able to resolve the issue.
`
`When directed by ZTE corporate, contact customers that have executive escalated concerns and
`
`resolve their concerns in any way possible;” “Acting Supervisor: When needed, act as supervisor
`
`to assist the production floor when one is not available.”
`
`I declare under penalty of perjury that the foregoing is true and correct to the best of my
`
`knowledge. Executed on December 29, 2017.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
`
`
`
`
`
`
`
`5
`
`