Case 2:17-cv-00517-JRG Document 55 Filed 02/14/18 Page 1 of 4 PageID #: 752
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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’ NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT
`OF MOTION TO DISMISS FOR IMPROPER VENUE,
`AND IN THE ALTERNATIVE, TO TRANSFER
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`Defendants ZTE (USA) Inc. and ZTE (TX), Inc. (“ZTA” and “ZTX,” respectively and
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`collectively, “ZTE”) 1 submit the attached two decisions, one from the U.S. District Court for the
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`Central District of California (Exhibit A), which issued on January 23, 2018, and the other from
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`the U.S. District Court for the Southern District of California (Exhibit B), which issued on
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`February 5, 2018, as supplemental authority for Defendants’ Motion to Dismiss for Improper
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`Venue and, in the alternative, Motion to Transfer. Case No. 2:17-cv-00517-JRG (consolidated
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`with Case No. 2:14-cv-00517-JRG. No. 57). Realtime Data LLC v. Nexenta Systems, Inc., 2:17-
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`cv-07690-SJO-JCX (Dkt. No. 28, Order) (C.D. Cal. Jan. 23, 2018) (“Realtime Data”) is attached
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`as Exhibit A, and West View Research, LLC v. BMW of North America et al., 3:16-cv-2590-JLS
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`(Dkt. No. 38) (S.D. Cal. Feb. 5, 2018) (“West View”) is attached as Exhibit B. These two new
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`1 Defendant ZTE Corporation has not yet been served or appeared, and thus the Motion to
`Dismiss for Improper Venue or in the Alternative to Transfer is on behalf of ZTX and ZTA only.
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`Case 2:17-cv-00517-JRG Document 55 Filed 02/14/18 Page 2 of 4 PageID #: 753
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`decisions both issued after Defendants’ last brief, as filed on January 19, 2018.2 See Dkt. No. 46.
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`In Realtime Data, the district court for the C.D. Cal. made the following findings, in view
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`of the Supreme Court’s recent decision in TC-Heartland, 137 S. Ct. 1514 (2017):
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` The phrase “‘for purposes of § 1400(b) a domestic corporation ‘resides’ only in its State
`of incorporation’ . . . contains a latent ambiguity.” Ex. A at 4-5 (emphasis original);
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` “The statement that a corporation resides ‘only in its state of incorporation’ merely
`provides a necessary condition for venue, not a sufficient condition. While venue may
`only be proper within the state of incorporation, a patent case must also be brought in the
`judicial district containing a corporation’s principal place of business. Adopting this
`view brings TC Heartland into alignment not only with the Supreme Court’s pre-Fourco
`jurisprudence, but also with the express language of the statute that ‘[a]ny civil action for
`patent infringement may be brought in the judicial district where the defendant resides.’”
`Id. at 5 (emphasis in original) (citing 28 U.S.C. § 1400(b)); and
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` “For the foregoing reasons, the Court STRIKES [Plaintiff’s] Amended Complaint,
`GRANTS [Defendant’s] Motion and TRANSFERS the matter.” Id. at 6 (emphasis in
`original).
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`Additionally, in West View, the district court for the S.D. Cal. made the following
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`findings, in view of the Federal Circuit’s decision in In re Cray, 871 F.3d 1355 (Fed. Cir. 2017):
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` “Plaintiff zeroes in on the language in Cray that ‘[r]elevant considerations include
`whether the defendant owns or leases the place, or exercises other attributes of
`possession or control over the place,’” Ex. B at 11 (emphasis in original);
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` “Plaintiff argues that despite no physical BMWNA or BMWMC office, venue is proper
`because of the numerous sales people and dealerships in this District (1) which BMWNA
`controls, and (2) for which BMWMC is the sole manufacturer of the allegedly infringing
`product. As to BMWNA, Plaintiff argues that it exercises ‘near-complete control’ over
`the dealers in this District pursuant to strict contractual relationships with these dealers. . .
`. Plaintiff lists at least thirty examples of BMWNA's control in the operating agreement.”
`Id. (citations omitted);
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`2 Herein, Defendants provides notice of two cases, as they relate to pending briefing before the
`Court, including pertinent citations from the case, but without attorney arguments on the issues.
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`Case 2:17-cv-00517-JRG Document 55 Filed 02/14/18 Page 3 of 4 PageID #: 754
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` “Plaintiff argues that BMWNA prominently advertises the BMW brand at the
`the Cray court’s consideration
`dealerships, which meets
`that ‘[m]arketing or
`advertisements also may be relevant, but only to the extent they indicate that the
`defendant itself holds out a place for its business.’” Id. at 12 (citations omitted);
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` “Plaintiff would have the Court find Defendants’ control over the dealership, evidenced
`by the operating agreement, to meet the third requirement. The Court disagrees.
`Plaintiff’s argument ignores the difference between separate and distinct corporate
`entities.” Id at 12-13;
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` “The Court finds no facts to support collapsing the corporate forms; the dealerships’
`physical locations are not places of Defendants.” Id. at 16;
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` “[T]he Court finds that [BMW corporate entities] do not own or control the dealerships or
`the employee’s home in the District for the purposes of the In re Cray test and 28 U.S.C.
`§ 1400(b)(2). There are no physical locations carrying on a regular and established
`business that are owned, controlled or possessed by Defendants.” Id. at 17;
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` “Plaintiff, who has the burden to prove venue, [ ] has not established that venue is proper
`in this District . . . For the reasons stated above, the Court GRANTS Defendants’ Motion
`to Transfer Venue . . .” Id. at 17-18 (citations omitted).
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`Dated: February 14, 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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`Case 2:17-cv-00517-JRG Document 55 Filed 02/14/18 Page 4 of 4 PageID #: 755
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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 14, 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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`4
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