IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT, LLC,
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`v.
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`HTC CORPORATION,
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`Plaintiff,
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`Defendant.
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`Case No. 2:17-cv-514-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`Case No. 2:17-cv-517-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT, LLC,
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`Plaintiff,
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`v.
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`ZTE CORPORATION, ET AL.,
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`Defendants.
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`DEFENDANTS’ OPPOSED MOTION FOR LEAVE TO FILE A SUR-SUR-REPLY
`BRIEF IN RESPONSE TO PLAINTIFF’S SUR-REPLY (DKT. 52) IN OPPOSITION TO
`DEFENDANTS’ MOTION (DKT. 38) TO DISMISS PLAINTIFF’S COMPLAINT
`FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, TO TRANSFER VENUE
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`Defendants ZTE (USA) Inc. and ZTE (TX), Inc. (“ZTA” and “ZTX,” respectively and
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`collectively, “ZTE”) 1 respectfully move the Court for leave to file a sur-sur-reply brief in
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`response to the sur-reply brief (Dkt. 52) filed by Plaintiff AGIS Software Development, LLC
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`(“AGIS”), regarding Defendants’ Motion to Dismiss Plaintiff’s Complaint for Improper Venue,
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`or in the Alternative, to Transfer (Dkt. 46). ZTE respectfully seeks leave to file a sur-sur-reply
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`brief for two reasons. First, AGIS’s sur-reply contains factual errors and/or misrepresentations,
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`which AGIS refuses to correct. Second, AGIS’s sur-reply brief includes new arguments not
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`included in AGIS’s opening brief, based on theories neither relied upon nor disclosed previously.
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`1 Defendant ZTE corporation has not yet been served or appeared, and the Motion to Dismiss for
`Improper Venue, or in the Alternative to Transfer is therefore on behalf of ZTX and ZTA only.
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`As to the first reason for leave, AGIS’s sur-reply brief contains several misstatements of
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`facts that require correction.2 Of note, AGIS incorrectly asserts that AGIS “alleged, without
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`contest, that ZTA manufactures, uses, sells, offers for sale, imports, and/or induces the sale of
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`infringing products in this District.” See Dkt. No. 52 at 2 (emphasis added). AGIS further
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`incorrectly asserts that “Defendants did not argue in its Motion to Dismiss that the ‘acts of
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`infringement’ requirement of 1400(b) was not satisfied.” Id. These allegations are not factually
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`correct. In its opening brief, ZTE clearly states that “no Defendant resides, has committed
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`alleged acts of infringement, or has a regular and established place of business in this District.”
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`Dkt. No. 38 at 1 (emphasis added). Further, Defendants, pursuant to Local Rule 7(a)(1), further
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`clarified: “the Court should dismiss this patent case under 28 U.S.C. § 1406 for improper venue
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`because the Defendants do not reside in this Judicial District, have not committed alleged acts
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`of infringement in this District, and do not have a regular and established place of business
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`here, as required to support venue under 28 U.S.C. § 1400.” Dkt. No. 38 (emphasis added). In
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`addition, in Defendants’ reply, ZTE unambiguously states that “ZTA also denies any acts of
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`infringement.” Dkt. No. 51 at 4. Accordingly, ZTE respectfully requests leave to file a sur-sur-
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`reply in order to address/correct these factual errors in the record from AGIS’s sur-reply brief.
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`2 AGIS’s sur-reply was filed on Friday, January 26, 2018, and on Monday, January 29, 2018,
`Defendants first notified AGIS of several factual errors in the sur-reply brief. See Exhibit A at 8-
`9. After several days of negotiations, AGIS eventually agreed to correct certain misstatements
`with respect to an incorrect sworn attorney declaration, infringement contentions, and one
`attached exhibit; however, AGIS refused to correct other misrepresentations regarding
`allegations as to the 1400(b) “acts of infringement.” Id. at 7-8. ZTE even suggested that a minor
`revision would rectify the factual error, by correcting AGIS’s sur-reply to state: “Defendants did
`not argue in its Motion to Dismiss argument section that the ‘acts of infringement’ requirement
`of 1400(b) was not satisfied as to ZTA. Dkt. 38 at 15-20”) (suggested correction emphasized).
`Id. at 3-5. AGIS still refused to reasonably revise the sur-reply brief with respect to the error of
`fact. Id. at 2-3. Ultimately, Defendants did not oppose AGIS’s partial correction of the sur-reply
`with respect to the first set of errors, but the second set of errors remain. Exhibit A at 1-3.
`Defendants submit that AGIS should correct all misrepresentations of fact in the sur-reply brief.
`2
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`As to the second reason for leave, AGIS’s sur-reply brief also contains a new argument
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`regarding the venue elements of 28 U.S.C. § 1400(b), first raised in its sur-reply brief. In this
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`District, a party is prohibited from arguing “new information” in replies and sur-replies. See
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`Gillaspy v. Dallas Ind. School Dist., 278 Fed. Appx. 307, 315 (5th Cir. 2008) (“It is the practice
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`of [the 5th Cir.] to refuse to consider arguments raised for the first time in reply [and sur-reply]
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`briefs”); see also Chrimar Sys., Inc. v. Dell, Inc., 2016 WL 9275408, at *1 (E.D. Tex. Feb. 29,
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`2016) (“This Court has also similarly previously stated that while replies and sur-replies are
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`permitted, the purpose of those briefs are to respond to arguments raised, not to present ‘new’
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`information that was known to a party at the time it filed its initial motion”). Yet, for the first time,
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`in the sur-reply brief, AGIS argues that: “Defendants did not argue in its Motion to Dismiss that the
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`‘acts of infringement’ requirement of 1400(b) was not satisfied as to ZTA.” Dkt. No. 52 at 2.
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`AGIS had not argued this point previously, as AGIS’s opposition only referenced “acts of
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`infringement as to the Amended Complaint,” not infringement as to 1400(b) requirements.3 See
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`Dkt. 46 at 15. In ZTE’s reply, ZTE responded to AGIS’s argument regarding the Amended
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`Complaint, Dkt. No. 38 at 1, but AGIS pivoted in its sur-reply, alleging (erroneously) for the first
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`time that ZTA waived the “acts of infringement requirement of 1400(b).” Because it was not
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`until the sur-reply brief that AGIS (erroneously) argued that the “acts of infringement”
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`requirement of 1400(b), AGIS improperly added a new argument in its sur-reply. Thus, as ZTE
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`had no opportunity to respond to the new argument, ZTE respectfully requests leave to file a sur-
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`sur-reply to address/correct these newly-raised (erroneous) arguments from AGIS’s sur-reply.
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`3 In its opposition brief, AGIS erroneously asserted that “[Defendants] concede[ ] that ZTA
`engaged, and continues to engage, in the infringing activities alleged in the Amended
`Complaint.” Dkt. No. 46 at 15. Defendants specifically responded to this argument by AGIS in
`its reply brief, by explaining, in part: “AGIS incorrectly alleges that ‘ZTA does not dispute’
`infringement---even that it ‘concedes that ZTA . . . engage[s] in the infringing activities. 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”. See Dkt. No. 51 at 4.
`3
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`For these reasons, Defendants respectfully request leave to file a sur-sur-reply (of 3 pages)
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`responding to AGIS’s sur-reply, specially addressing the factual errors and newly-made argument.
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`Dated: February 12, 2018
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`Respectfully submitted,
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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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`4
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on this February 12, 2018. All other counsel not
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`deemed to have consented to service in such manner will be served via facsimile transmission
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`and/or first class mail.
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
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`5
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`CERTIFICATE OF CONFERENCE
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`The parties complied with Local Rule CV-7(h). On February 9, 2018, Defendants’
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`counsel, Lionel Lavenue, conferred with Plaintiff’s counsel, Vincent Rubino, via telephone, and
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`Plaintiff’s counsel confirmed that Plaintiff opposes the relief sought in this motion.
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
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`6
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