Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 1 of 16 PageID #: 601
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Plaintiff,
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`v.
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`AGIS Software Development, LLC,
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`ZTE CORPORATION, ZTE (USA) INC.,
`AND ZTE (TX), INC.,
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`Defendants.
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`Case No. 2:17-CV-00517-JRG
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`DEFENDANTS ZTE (TX), INC.’S AND ZTE (USA) INC.’S REPLY IN SUPPORT OF
`MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT FOR IMPROPER
`VENUE OR IN THE ALTERNATIVE TO TRANSFER
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`
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 2 of 16 PageID #: 602
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`
`TABLE OF CONTENTS
`
`I.
`
`The Amended Complaint from AGIS Should be Dismissed for Improper Venue ............. 2
`
`A.
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`
`
`B.
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`
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`Venue is Improper under the First Prong of 28 U.S.C. § 1400(b) .......................... 2
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`Venue is Improper under the Second Prong of 28 U.S.C. § 1400(b) ..................... 3
`
`1.
`
`
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`ZTA does not have a “Regular and Established Place of Business”
`in the Eastern District of Texas ................................................................... 4
`
`a.
`
`b.
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`Third Party Vendor, iQor, Is Not a ZTA Place of Business ........... 4
`
`ZTA Employee’s Homes Are Not ZTA Places of Business ........... 6
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`II.
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`If Not Dismissed, Transfer Is Proper Here to the Northern District of California ............. 8
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`A.
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`
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`B.
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`
`
`C.
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`
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`Private Factor: Access to Sources of Proof Favors Transfer to the NDCA ............ 8
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`Private Factor: Convenience of Witness Favors Transfer to the NDCA ................ 9
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`Public Factor: Transfer Minimizes Congestion and Promotes Economy ............. 10
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`III.
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`CONCLUSION: THIS CASE SHOULD BE DISMISSED OR TRANSFERRED ......... 10
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`
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`
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`i
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 3 of 16 PageID #: 603
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`
`
`TABLE OF AUTHORITIES
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`
`
`Page(s)
`
`Federal Cases
`
`Accord Action Commc’n Sys., Inc. v. Datapoint Corp.,
`426 F. Supp. 973, 974-75 (N.D. Tex. 1977) ..............................................................................3
`
`Advanced Ground Info. Sys., Inc. v. Life360, Inc.
`No. 9:14-cv-80651-DMM (S.D. FL. July 11, 2014) ..............................................................1, 9
`
`AGIS Software Dev. LLC v. HTC Corp.,
`2:17-cv-00514-JRG (Dkt. No. 26) (E.D. Tex. Dec. 15, 2017) ................................................10
`
`Am. GNC Corp. v. ZTE Corp.
`No. 4:17-cv-00620-ALM-KPJ, (E.D. Tex. No. 7, 2017) ...........................................................5
`
`Berry v. Pilgrim’s Pride Corp.
`No. 2:16-CV-409-JRG, 2016 WL 6092701, at *3 (E.D. Tex. Oct. 19, 2016) .........................10
`
`Cal. Irrigation Servs., Inc. v. Barton Corp.,
`654 F. Supp. 1, 2-3 (N.D. Cal. 1985) .........................................................................................3
`
`Diem LLC v. BigCommerce, Inc.,
`., No. 6:17-CV-186, 2017 WL 3187473 (E.D. Tex. Jul. 26, 2017) ...........................................3
`
`In re BigCommerce, Inc.,
`No. 18-120, Dkt No. 2-1 (December 22, 2017) .........................................................................3
`
`In re Cray,
`871 F.3d 1355, 1362, No. 2017-129 (Fed. Cir. Sept. 21, 2017) ........................................1, 4, 8
`
`In re ZTA (USA) Inc.,
`No. 18-113, *6 (Dkt. No. 2-1) (Fed. Cir. November 30, 2017) .................................................2
`
`Oyster Optics, LLC v. Coriant Am. Inc.,
`No. 2:16-CV-1302, 2017 WL 4225202, at *5 (E.D. Tex. Sep. 22, 2017) .................................8
`
`Personal Audio, LLC v. Google, Inc.,
`1:15-cv-350 (Dkt. 103) (E.D. Tex. 2017) ..........................................................................1, 2, 6
`
`Realtime Data LLC v. Barracuda Networks Inc.,
`2017 WL 4791970, at *3 (E.D. Tex. Oct. 24, 2017) ...............................................................10
`
`Stonite Prods., Co. v. Melvin Lloyd Co.,
`315 U.S. 561 (1942) ...................................................................................................................3
`
`ii
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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 4 of 16 PageID #: 604
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`Federal Statutes
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`28 U.S.C. § 1400(b) ............................................................................................................... passim
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`
`
`iii
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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 5 of 16 PageID #: 605
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`
`It seems inescapable that forum shopping led AGIS to this District.1 In its opposition
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`brief, AGIS seeks venue in this District over two ZTE entities, ZTE (TX) Inc. (“ZTX”) and ZTE
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`(USA) Inc. (“ZTA), neither of which are located here. ZTX is a California-based company with
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`four offices in the US, including its principal place of business in Milpitas, California and an
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`office in the Western District of Texas—nothing in this District. And, ZTA is a New Jersey
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`company with its principal place of business located in the Northern District of Texas—again,
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`nothing in this District. AGIS’s only argument that venue is proper for ZTX in this District is
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`that ZTX is incorporated in Texas, but AGIS concedes that venue must be over both ZTX and
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`ZTA and concedes that ZTA is not incorporated in Texas. As to ZTA, AGIS also argues that (1)
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`a third-party vendor, iQor, establishes venue for ZTA (however, this is not so) and that (2) ZTA
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`employees living in this District would establish venue for ZTA (but, again, this is also not so).2
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`If this case is not dismissed for improper venue, transfer is alternatively sought, but AGIS
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`opposes transfer from this District to the more appropriate and convenient Northern District of
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`California (NDCA). Yet, all private and public interest factors—access to evidence, convenience
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`of parties and witnesses, compulsory process, court congestion, and local interest—favor transfer
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`to the NDCA. AGIS points towards no material key witnesses located here, only speculates
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`about possible third-party witnesses here, and cites only ephemeral ties here. Yet, source code
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`and evidence as well as third parties pertinent to this matter are located in the NDCA. And, the
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`
`1 A mere twenty days before bringing this action in this District, AGIS Software Development, LLC (“AGIS”) was
`formed and incorporated in Texas. And, two months prior to that, AGIS’s sister company (under the name
`“Advanced Ground Information Systems, Inc.”) was litigating in the Southern District of Florida with patents from
`the same family as asserted here. Once the Florida matter was resolved, in a loss (with non-infringement and
`attorneys’ fees awarded against them for almost $750,000 due to litigating “an exceptionally weak case”), AGIS
`then sought this forum. See Ex. A (“While I stop short of finding of bad faith, continued assertion of these claims
`seemed designed to extract settlement not based upon the merits of the claim but on the high cost of litigation.”).
`2 See Personal Audio, LLC v. Google, Inc., 1:15-cv-350 (Dkt. 103) (E.D. Tex. 2017); and In re Cray, 871 F.3d
`1355, 1362, No. 2017-129 (Fed. Cir. Sept. 21, 2017).
`
`
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 6 of 16 PageID #: 606
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`witnesses likely to testify on the functionality of the accused applications are also in the NDCA.
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`Finally, in its opposition brief, AGIS has presented many errors. On venue, AGIS
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`erroneously asserts that Defendants admitted to venue in this District for ZTX (it did not).3 AGIS
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`also erroneously asserted that ZTA has employees working at home (again, not correct, as
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`rebutted in detail by a ZTA declarant). AGIS also erroneously asserted that a third-party vendor
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`office is a ZTA business (again, not correct, as rebutted in detail by a declaration from that very
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`vendor, which explains that the vendor owns/operates its call center facility, not ZTA). On
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`transfer, AGIS erroneously asserts that ZTX admitted this District was convenient for several
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`employees (again, it did not, as confirmed and rebutted by a ZTX declarant on the very issue).
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`I.
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`The Amended Complaint from AGIS Should be Dismissed for Improper Venue
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`Venue is only proper in a judicial district where the defendant resides, or where the
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`defendant has committed acts of infringement and has a regular and established place of
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`business. Based on the Supreme Court’s and Federal Circuit’s guidance, venue is improper for
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`both ZTX and ZTA under either 28 U.S.C. § 1400(b) prong, as neither defendant resides in this
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`District, neither committed acts of infringement, and neither has regular and established places of
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`business in this District. AGIS has not shown (and cannot show) venue for either ZTX or ZTA.4
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`
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` A.
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`Venue is Improper under the First Prong of 28 U.S.C. § 1400(b)
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`Under the first prong of 28 U.S.C. § 1400(b), venue for a defendant in a patent case is
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`proper in the district where the defendant resides. Yet, of note, neither ZTX nor ZTA reside in
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`this District. In fact, AGIS does not even contest that ZTA lacks residency in this District. Dkt.
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`3 See Dkt. No. 46 at 8 (section titled “ZTA’s Prior Admission”); but see also In re ZTA (USA) Inc., No. 18-113, *6
`(Dkt. No. 2-1) (Fed. Cir. November 30, 2017) (“ZTE (TX) Inc. filed an answer and did not object to venue for
`purposes of this case”).
`4 AGIS has the burden to show venue is proper for ZTX and ZTA. See Personal Audio, No. 1:15-cv-350 (finding,
`for venue, the burden of proof rests on the Plaintiff).
`
`2
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 7 of 16 PageID #: 607
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`No. 46 at 12-15. And, ZTX does not reside in the District. Thus, based on the residence of both
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`ZTA and ZTX, venue is improper for both entities under the first prong of 28 U.S.C. § 1400(b).
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`As to ZTX in particular, ZTX is a resident of the Western District of Texas, not this
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`District. Specifically, ZTX is a ZTE Hong Kong Ltd. subsidiary in the Western District of Texas.
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`Shan Decl. ¶¶ 3-4 (Dkt. No. 38). ZTX’s principal place of business is in Milpitas, California and
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`maintains an office in Austin, Texas. Shan Decl. ¶ 13 (Dkt. No. 38). In 2013, ZTX registered
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`with the Secretary of State in Austin and became incorporated in Texas. Shan Decl. ¶ 14 (Dkt.
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`No. 38). These Western District contacts show ZTX’s residency is in the Western District—thus,
`
`not the Eastern District. AGIS cites Diem in support of residency over ZTX in the Eastern
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`District; however, the case law clearly indicates otherwise.5 And, as for Diem, the court there
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`found that, for one defendant conducting business throughout Texas, then that “defendant resides
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`in each [] judicial district [within the state of incorporation] for venue purposes.” Diem, 2017
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`WL 3187473, at *2. But, there are two defendants at issue here, ZTX and ZTA. And, unlike
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`Diem, not only does ZTX not conduct business in the Eastern District of Texas, Shan Decl. ¶¶ 6-
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`13 (Dkt. No. 38), but both ZTX and ZTA have no connections to this District. The conclusion is
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`that there is no residency in this District, by mere incorporation of one of two entities in Texas.6
`
` B.
`Venue is Improper under the Second Prong of 28 U.S.C. § 1400(b)
`
`
`5 Diem LLC v. BigCommerce, Inc., No. 6:17-CV-186, 2017 WL 3187473 (E.D. Tex. Jul. 26, 2017). Thus, as
`explained, Diem is distinguishable. Furthermore, it should also be noted that the finding in Diem is currently being
`reviewed by the Federal Circuit. See In Re BigCommerce, Inc., No. 18-120, Dkt No. 2-1 (December 22, 2017).
`6 See 28 U.S.C. § 1400(b) (section 1400(b) refers to residence as something that happens in a single judicial district,
`not in multiple districts simultaneously. “Any civil action for patent infringement may be brought in the judicial
`district where the defendant resides.”) (emphasis added); and Stonite Prods., Co. v. Melvin Lloyd Co., 315 U.S. 561
`(1942) (In order to surmise the holding, the Supreme Court assuming that a corporation inhabited only one judicial
`district); Accord Action Commc’n Sys., Inc. v. Datapoint Corp., 426 F. Supp. 973, 974-75 (N.D. Tex. 1977) (“I am
`led to the inescapable conclusion that a corporation may be sued under the §1400(b) residence provision only in the
`state of incorporation and, within that state, only in the judicial district where its principal place of business is
`located”); Cal. Irrigation Servs., Inc. v. Barton Corp., 654 F. Supp. 1, 2-3 (N.D. Cal. 1985) (finding that “a
`defendant corporation resides in the district in its state of incorporation where its principal place of business is”).
`
`3
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 8 of 16 PageID #: 608
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`Under the second prong of 28 U.S.C. § 1400(b), venue for a defendant is only proper in a
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`district in which the defendant (A) has committed acts of infringement and (B) maintains a
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`regular and established place of business. ZTX certainly denies any acts of infringement, and it is
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`undisputed that ZTX does not maintain a regular and established place of business in this
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`District. Indeed, AGIS does not contest this fact. Dkt. No. 46 at 12-15. ZTA also denies any acts
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`of infringement,7 and it does not maintain a regular and established place of business in this
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`District. Under In re Cray, as there is no “place of business” (“regular” and “established”) here,
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`venue is thus per se improper under the second prong of 28 U.S.C. § 1400(b). 871 F.3d at 1362.
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`1.
`
`
`
`ZTA does not have a “Regular and Established Place of Business” in
`the Eastern District of Texas
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`Although ZTA does not have a place of business in this District, AGIS alleges two
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`alternative reasons for venue over ZTA — (1) the fact that ZTA uses a third-party call center
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`vendor, located in the District, and (2) the fact that certain employees, who live in the District,
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`“may work from home.” Both alternatives are erroneous. ZTA’s call center vendor, iQor, which
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`is located in the District (in Plano, Texas), is not a ZTA business, nor does it provide regular and
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`established place of business for ZTA. And, AGIS points toward no facts linking ZTA to a
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`“regular and established place of business,” based on any employees who live in the District.
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`Third Party Vendor, iQor, Is Not a ZTA Place of Business
`a.
`AGIS goes to great lengths to try to connect ZTA to a third-party call center, iQor.8
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`Primarily, citing Am. GNC Corp., AGIS references a ZTA marketing slide that refers to iQor, but
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`7 AGIS incorrectly alleges that “ZTA does not dispute” infringement—even that it “concedes that ZTA . . .
`engage[s] in the infringing activities.” Dkt. No. 46 at 15. This conclusory rhetoric is baseless, at least as Defendants
`have yet to answer the Amended Complaint, given the pending motion to dismiss and/or to transfer. Besides, AGIS
`never properly alleged infringement. See Dkt. No. 32 at 23-83. In asserting infringement, AGIS asserts infringement
`generally, undifferentiating any of alleged acts across three defendants, systems, and patents. Dkt. No. 32 at 23-83.
`8 The call center is operated by First Contact LLC, a subsidiary of iQor U.S. Inc. Collectively, these non-parties are
`referred to as “iQor.” Neither company has a corporate relationship to ZTE, ZTA, or any such entity related thereto.
`
`4
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 9 of 16 PageID #: 609
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`the slide merely summarized ZTA’s effort to move its customer support from India to the United
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`States. Wood Decl. ¶¶ 4-6; see also Rayeski Decl. ¶¶ 4-6 (Dkt. No. 38). And, the District Court
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`in Am. GNC Corp. never found that the iQor call center was a physical place of ZTA.9 AGIS’s
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`procedural characterization of Am. GNC Corp. is a gross exaggeration and does not accurately
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`depict ZTA’s business ties to its call center vendor, iQor. In fact, iQor is an independent
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`company that owns, operates, and controls call centers all around the world, including in Plano,
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`Texas. Holmen Decl. ¶ 4. From these call centers, iQor employees take service calls regarding
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`ZTA and many other iQor customers. Holmen Decl. ¶ 5. iQor works with many well-known
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`Fortune 500 companies, providing numerous call center services, by employing about 10,000
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`call center agents located in more than fifteen U.S. cities. Holmen Decl. ¶ 5. These call centers
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`are iQor businesses. Holmen Decl. ¶ 5. iQor provides initial and periodic training for their call
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`center agents, and iQor also provides supervision over the call center agents. Holmen Decl. ¶ 5.
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`iQor is owned, operated, and controlled by iQor, not ZTA. Holmen Decl. ¶ 4. In 2015,
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`when ZTA sought to move its customer call services to the United States, ZTA accepted
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`proposals from third-party call center vendors with facilities located in the Dallas-Fort Worth
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`metro area, throughout Texas, and throughout the United States. Rayeski Decl. ¶ 6 (Dkt. No. 38).
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`Ultimately, iQor was selected. Wood Decl. ¶ 5; and Rayeski Decl. ¶ 8 (Dkt. No. 38). iQor
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`initially operated in Richardson, Texas (not this District) and later decided to open a new facility
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`in Plano, Texas. Rayeski Decl. ¶ 7 (Dkt. No. 38). ZTA does not own, lease, rent, operate, or
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`control any place of business in Plano, Texas, including the iQor call center. Wood Decl. ¶ 410
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`
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`9 Am. GNC Corp. v. ZTE Corp., No. 4:17-cv-00620-ALM-KPJ, (E.D. Tex. No. 7, 2017) (of note, both the
`Magistrate Judge and District Judge identify the call center as “a physical place,” but not as a ZTA “place”).
`10 ZTA does not maintain a regular and established place of business in Plano, Texas. Wood Decl. ¶ 4. There is no
`ZTA signage at the iQor call center. Rayeski Decl. ¶ 11 (Dkt. No. 38). In fact, this very iQor call center services at
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`
`5
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 10 of 16 PageID #: 610
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`To conclude that ZTA has a place of business at a third-party vendor and that the third-
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`party itself is a ZTA business would be an error of fact and law, with “far-reaching consequences
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`that distort the scope of the statute.” Personal Audio, LLC v. Google, Inc., 1:15-cv-350 (Dkt.
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`103) (E.D. Tex. 2017) (finding that “server rooms” are not rooms from which Google business is
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`conducted, even though recognizing that “[i]t might be true that part of Google’s business relies
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`on these servers, but that does not amount to Google’s business being carried out from them”).
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`b.
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`ZTA Employee’s Homes Are Not ZTA Places of Business
`
`AGIS alleges that “ZTA admits that it ‘has employee(s) who live in the Eastern District
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`of Texas, and one or more of those employee(s) may work from ZTA’s employee home offices.”
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`Dkt. No. 46 at 18 (Emphasis added). And, based on these “home offices,” AGIS alleges venue.
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`But, the actual quote from ZTA’s declarant is that “ZTA has employee(s) who live in the Eastern
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`District of Texas, and one or more of those employee(s) may work from home.” Dkt. No. 38 at 5
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`(Emphasis added). In other words, ZTA never characterized anything about the employee home
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`offices, other than employees “may work from home.” ZTA never denoted “home offices.” Yet,
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`based on a misquote, and with no basis, AGIS further alleges “[u]pon information and belief” a
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`laundry list of unsupported accusations concluding that the employees’ personal home offices
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`constitute “regular and established” places of business of ZTA. Dkt. No. 46 at 19. For instance:
`
`Basis
`
`Reality
`
`AGIS’s Baseless “Information and Belief” Allegations
`Accusation
`“ZTA’s Eastern District employees possess ZTE USA-issued permanent workstations and
`equipment for carrying out their duties within the scope of their employment from ‘ZTA’s
`employee home offices’”
`“ZTA reimburses these employees for certain costs associated with working from ‘ZTA’s
`employee home offices’ which include the cost of devices, equipment, furniture, travel, and/or
`
`
`None
`
`Error Allegation
`
`None
`
`Error Allegation
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`least five other customers, with Capital One being by far the largest. Rayeski Decl. ¶ 10 (Dkt. No. 38). Additionally,
`ZTA does not have dedicated representatives at any iQor call center; ZTA does not have full time employees on site
`at iQor call centers; ZTA does not have control over the call center agents’ apparel; and ZTA does not maintain
`direct control over the call center agents, representatives, or the call center itself. Wood Decl. ¶ 6 and Holmen Decl.
`¶ 5; see also Rayeski Decl. ¶¶ 12-16 (Dkt. No. 38). These facts are clearly defined by declaration evidence of record.
`
`6
`
`

`

`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 11 of 16 PageID #: 611
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`utility costs”
`“that these employees are subject to ZTA’s rules and/or procedures for using ZTA
`computers/equipment and for working from ‘ZTA’s employee home offices’”
`“ZTA sets forth standards for conducting work from the ‘ZTA’s employee home offices” and
`ensures compliance with all relevant federal state, and local laws for such home offices’”
`“ZTA creates job descriptions and identifies tasks eligible for ‘ZTA’s employee home offices’”
`“ZTA reserves the right to discontinue and/or make changes to the arrangements, at its discretion,
`for ‘ZTA’s employee home offices’”
`“ZTA implements procedures and policies for on going reviews, pilot programs, test periods with
`defined end dates, benchmarks for success of its employees and their performance at the ‘ZTA’s
`employee home offices’”
`“ZTA implements procedures and policies for restricting an employee’s schedule at or ability to
`work form the ‘ZTA’s employee home offices,’ including exercising control over the employee to
`work at particular sites other than the ‘ZTA’s employee home offices’ for specific business
`reasons”
`“ZTA affords the worker’s compensation benefits for injuries or disabilities arising out of and in
`the course and/or scope of employment at the ‘ZTA’s employee home offices’”
`“ZTA implements technology maintenance and data security policies, regardless of whether it
`provides certain computers/equipment or a ‘bring your own device’ policy for work at ‘ZTA’s
`employee home offices’”
`
`AGIS asserts this laundry list of allegations on information and belief, but in fact, ZTA’s
`
`None
`
`Error Allegation
`
`None
`
`Error Allegation
`
`None
`None
`
`Error Allegation
`Error Allegation
`
`None
`
`Error Allegation
`
`None
`
`Error Allegation
`
`None
`
`Error Allegation
`
`None
`
`Error Allegation
`
`Employee Handbook prohibits employees from working from home without approval. Ex. B,
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`Employee Handbook (Revised September 2015). And, as confirmed by a ZTA declarant, the fact
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`is that no ZTA employee has been approved to work from home in the District, and these very
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`employees are required to work at the Richardson, TX office (in the NDTX). Wood Decl. ¶ 7.
`
`No ZTA employee in the District is approved for telecommuting (working from home), and thus,
`
`
`
`7
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`

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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 12 of 16 PageID #: 612
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`no home can be a place of business. Wood Decl. ¶ 8; and Wood Decl. ¶ 14 (Dkt. No. 38).11
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`II.
`
`If Not Dismissed, Transfer Is Proper Here to the Northern District of California
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`If this case is not dismissed for venue, transfer is proper. Here, the NDCA is the proper
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`forum, as it is the more convenient forum. The private and public interest factors favor transfer.
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`Indeed, all three private factors favor transfer, as the relevant evidence is in the NDCA. The key
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`fact witnesses are also located in the NDCA12 (whereas the bulk of AGIS’s documents are
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`presumably still located in Florida, and AGIS has no material witness in this District). Also, the
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`private factors favor transfer. Transfer will promote judicial efficiency, because all co-defendants
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`seek transfer to NDCA, and the NDCA has a strong interest, as all co-defendants’ relevant
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`facilities are in the NDCA. Indeed, the most relevant evidence and witnesses are also in NDCA.
`
`
`
` A.
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`Private Factor: Access to Sources of Proof Favors Transfer to the NDCA
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`AGIS responds that access to proof is irrelevant and that third-party evidence (from
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`Google) is a non-factor, because the code at issue (Google’s open source code) is public. Both
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`points are wrong. First, the argument that the first private favor for transfer is irrelevant lacks
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`merit. This factor weighs in favor of transfer where, as here, no sources of proof exist within this
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`District, even if documents can be produced electronically.13 Additionally, no dispute exists that
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`the majority of documentary evidence exists in the NDCA. Most, if not all, of the witnesses,
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`applications, and physical evidence are located in Milpitas, California or San Francisco,
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`California.14 See Yee Decl. ¶ 7-10 (Dkt. No. 38). And, AGIS does not identify relevant sources
`
`
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`11 See In re Cray, 871 F.3d 1355, 1366, No. 2017-129 (Fed. Cir. Sept. 21, 2017) (“employee [who] owns a home in
`which he carries on some of the work that he does” is insufficient to establish venue).
`12 Additionally, there will be no ZTX witnesses from the Eastern District. See Shan Decl. ¶ 4.
`13 Oyster Optics, LLC v. Coriant Am. Inc., No. 2:16-CV-1302, 2017 WL 4225202, at *5 (E.D. Tex. Sep. 22, 2017).
`14 AGIS also makes several assertions that mobile carriers, like AT&T, Sprint, and Verizon, will potentially provide
`evidence is merely conjecture and speculation. Without further information, such hypotheticals should be ignored.
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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 13 of 16 PageID #: 613
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`of proof in this District. Dkt. No. 46 at 23-25. In fact, AGIS previously declared that their
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`“physical documents” and “electronic documents,” including patent prototypes and reduction to
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`practice documents, are located in Jupiter, Florida.15 Also, despite relying on Google software in
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`the Amended Complaint,16 AGIS now argues that Google software is a non-factor. It is clear that
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`evidence from third-parties, like Google, will be relevant (evidence not located in this District,
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`but in the NDCA). See Oplinger Decl. ¶¶ 2-3 and Luh Decl. ¶¶ 2-3. As to the Google source
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`code, the identified Google applications are not open source, as AGIS claims, but rather are
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`highly confidential and non-public code, and are maintained internally by Google engineers in
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`California. See Oplinger Decl. ¶¶ 1-3 and Luh Decl. ¶¶ 1-3. Additionally, the ZTA employees
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`involved with Google, to integrate Android functionality to ZTA smartphones, are also located in
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`NDCA. See Yee Decl. ¶¶ 5-7 (Dkt. No. 38). Clearly, the heart of this case is in the NDCA.
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`Private Factor: Convenience of Witness Favors Transfer to the NDCA
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`AGIS incorrectly claims that no witness will be inconvenienced by traveling to this
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`District. However, both ZTE-related and third-party employees with relevant knowledge on the
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`accused functionalities are located in the NDCA and would be inconvenienced by traveling here.
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`The testimony relevant to most issues will largely come from witnesses based out of California,
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`see Yee Decl. ¶¶ 8-9 (Dkt. No. 38), or from Google witnesses also based out of California, see
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`Oplinger Decl. ¶¶ 1-3 and Luh Decl. ¶¶ 1-3. In fact, Jeff Yee, of ZTA, previously explained: “I
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`believe that I am the person associated with ZTA and ZTC in the United States who is the most
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`knowledgeable about the alleged use of the Proprietary Android Applications in ZTA products.”
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`Yee Decl. ¶ 5 (Dkt. No. 38). Jeff is one of approximately “15 employees of ZTE‐related
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`15 Advanced Ground Info. Sys., Inc. v. Life360, Inc., No. 9:14-cv-80651-DMM (S.D. FL. July 11, 2014).
`16 In the Amended Complaint, AGIS cites to Google software applications such as “Google Maps,” “Find My
`Device,” “Google Messages,” “Google Hangouts,” “Google Plus,” and “Google Latitude.” Dkt. No. 32 at 22.
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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 14 of 16 PageID #: 614
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`companies located in the San Francisco Bay Area [and] [t]o the best of [his] knowledge, all ZTE‐
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`related personnel located in the United States and who are responsible for interacting with
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`Google are located.” AGIS argues their employees are key party witnesses and should factor in
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`this analysis. However, these individuals are not inconvenienced by traveling to NDCA. For
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`instance, AGIS identifies five witnesses they may call at trial. Dkt. No. 38 at 4-5. Malcom Beyer
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`has lived and worked in Florida, and his convenience is thus entitled to little weight, as he must
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`travel regardless.17 Similarly, Sandel Blackwell resides in Kansas and previously traveled to
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`Florida to testify for AGIS. As for David Sietsema and Eric Armstrong, both of whom have
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`knowledge about AGIS’s products, it is unclear how this is relevant to this matter accusing
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`infringement by Defendants’ products. Lastly, AGIS identifies Joseph McAlexander as a
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`technical expert; however, the location of experts is given no weight in the transfer analysis.18
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`Public Factor: Transfer Minimizes Congestion and Promotes Economy
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`AGIS cites co-pending cases against Apple, Huawei, LG, and HTC as a basis for denying
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`transfer. Dkt. No. 46 at 27. But, as here, Apple, Huawei, and LG19 have filed motions to dismiss
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`(for improper venue)—and/or motions to transfer to the NDCA—a fact AGIS omits in its brief.
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`III. CONCLUSION: THIS CASE SHOULD BE DISMISSED OR TRANSFERRED
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`ZTX and ZTA thus respectfully request that the Court dismiss the Amended Complaint
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`for improper venue or, alternatively, that the Court transfer to the proper forum, here, the NDCA.
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`Respectfully submitted,
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`/s/Lionel M. Lavenue
`Lionel M. Lavenue
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`17 See Realtime Data LLC v. Barracuda Networks Inc., 2017 WL 4791970, at *3 (E.D. Tex. Oct. 24, 2017).
`18 See Berry v. Pilgrim’s Pride Corp., No. 2:16-CV-409-JRG, 2016 WL 6092701, at *3 (E.D. Tex. Oct. 19, 2016).
`19 The complaint was only recently served against HTC, which was just recently consolidated with this case. See
`AGIS Software Dev. LLC v. HTC Corp., 2:17-cv-00514-JRG (Dkt. No. 26) (E.D. Tex. Dec. 15, 2017).
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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 15 of 16 PageID #: 615
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`Dated: January 19, 2018
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`Lionel M. Lavenue
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190
`Phone: (571) 203-2700
`Fax: (202) 408-4400
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`ATTORNEY FOR DEFENDANTS
`ZTE (USA) INC. AND ZTE (TX), INC.
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`Case 2:17-cv-00517-JRG Document 51 Filed 01/19/18 Page 16 of 16 PageID #: 616
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 19, 2018, I electronically filed the foregoing with the
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`Clerk of Court using the CM/ECF system, which will send a notification of such filing (“NEF”)
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`all counsel of record who have appeared in this case. I also caused the documents above to be
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`sent to all counsel of record via electronic mail.
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190
`Phone: (571) 203-2700
`Fax: (202) 408-4400
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`ATTORNEY FOR DEFENDANTS
`ZTE (USA) INC. AND ZTE (TX), INC.
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