`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT, LLC,
`
`Plaintiff,
`
`
`
`Case No. 2:17-cv-517-JRG
`
`
`JURY TRIAL DEMANDED
`
`v.
`
`ZTE CORPORATION, ZTE (USA), INC.,
`AND ZTE (TX), INC.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S
`RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY
`
`
`
`Plaintiff AGIS Software Development, LLC hereby responds to the Notice of
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`Supplemental Authority (Dkt. 55) filed by the defendants ZTE Corporation, ZTE (USA), Inc.
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`and ZTE (TX), Inc. (Collectively “ZTE”) which attached two cases.
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`
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`The first case, Realtime Data LLC v. Nexenta Systems, Inc., 2:17-cv-07690-SJO-JCX
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`(Dkt. No. 28, Order) (C.D. Cal. Jan. 23, 2018) (“Realtime Data”), held that the language of 28
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`U.S.C. § 1400(b) implies that a defendant resides only in the judicial district within its state of
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`incorporation that it maintains its principal place of business. Dkt. 55-1, at 5. Aside from a
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`passing reference to Your Honor’s decision in Diem LLC v. BigCommerce, Inc., No. 6:17-cv-
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`00186, 2017 WL 3187473 (E.D. Tex. July 26, 2017) (noting the recognition of a "tension"
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`between the definition of “inhabitant” and “resident”), the Realtime Data case does not change
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`or affect the law in this district as established in Diem, namely that Stonite and its progeny
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`command the opposite result.
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`
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`The second case, West View Research, LLC v. BMW of North America, LLC, No. 3:16-
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`cv-2590-JLS (Dkt. 38) (S.D. Cal. Feb. 5, 2018) (“West View”) held that an automobile dealership
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`
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`Case 2:17-cv-00517-JRG Document 56 Filed 02/15/18 Page 2 of 4 PageID #: 783
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`was not a “regular and established” place of business of the automobile importer for the purposes
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`of venue. The order in the West View case fundamentally misinterprets Federal Circuit guidance
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`and requires the regular and established place of business to be owned by the defendant, rather
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`than be of the defendant. In this district, entities that are not “owned or leased by the defendant”
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`can be regular and established places of business for venue purposes. Intellectual Ventures II
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`LLC v. FedEx Corp., et al., No. 2:16-cv-00980-JRG, 2017 WL 5630023, at *6-7 (E.D. Tex. Nov.
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`22, 2017) (Gilstrap, J.); Am. GNC Corp. v. ZTE Corp., 2017 WL 5157700, at *1 (E.D. Tex. Nov.
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`7, 2017).
`
`
`
`Dated: February 15, 2018
`
`
`
`
`
`
`
`BROWN RUDNICK LLP
`
`/s/ Vincent J. Rubino, III
`
`
`
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`NY Bar No. 2303089
`Email: ldrucker@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique William Iturralde
`NY Bar No. 5526280
`
`
`
`2
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`
`
`Case 2:17-cv-00517-JRG Document 56 Filed 02/15/18 Page 3 of 4 PageID #: 784
`
`Email: eiturralde@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`jtruelove@mckoolsmith.com
`McKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
`
`
`
`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT, LLC
`
`
`
`3
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`
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`Case 2:17-cv-00517-JRG Document 56 Filed 02/15/18 Page 4 of 4 PageID #: 785
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 15, 2018, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court's CM/ECF system per Local Rule CV-5(a)(3).
`
`
`
`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
`
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`4
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