Case 2:17-cv-00517-JRG Document 57 Filed 02/26/18 Page 1 of 6 PageID #: 786
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`AGIS SOFTWARE DEVELOPMENT, LLC,
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`Plaintiff,
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`Case No. 2:17-cv-00517-JRG
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`JURY TRIAL DEMANDED
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`ZTE CORPORATION, ET AL.,
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`Defendants.
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`v.
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`PLAINTIFF’S OPPOSITION TO DEFENDANTS’ OPPOSED MOTION (DKT. 54)
` 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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`Plaintiff AGIS Software Development, LLC (“AGIS”), by and through its undersigned
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`counsel, hereby submits this response in opposition to Defendants ZTE (TX) Inc. (“ZTX”) and
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`ZTE (USA) Inc.’s (“ZTA” together with ZTX, “ZTE”) Opposed Motion for Leave to File a Sur-
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`Sur-Reply Brief in Response to Plaintiff’s Sur-Reply (Dkt. 52) in Opposition to Defendants’
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`Motion (Dkt. 38) to Dismiss Plaintiff’s Complaint for Improper Venue or, in the Alternative, to
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`Transfer Venue. By failing to counter AGIS’s allegations in its Amended Complaint that ZTA
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`engaged in acts of infringement sufficient to satisfy 28 U.S.C. § 1400(b), ZTA waived this
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`argument. Just like it is improper for ZTE to attempt to resurrect this argument in its Reply, it is
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`improper for ZTE to attempt or do so under the guise of a Motion for Leave. ZTE’s Motion for
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`Leave is nothing more than a bald attempt to rewind the clock and correct its own error.
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`Case 2:17-cv-00517-JRG Document 57 Filed 02/26/18 Page 2 of 6 PageID #: 787
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`A.
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`AGIS’s Sur-Reply Is Factually Accurate
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`AGIS’s Sur-Reply correctly states that ZTE did not argue in its Motion to Dismiss that
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`the “acts of infringement” requirement was not satisfied as to ZTA. Dkt. 52 at 2. In its Motion to
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`Dismiss, ZTE separates its improper venue arguments for ZTX and ZTA. Dkt. 46 at 15-20. ZTE
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`argues that ZTX does not satisfy either requirement of 1400(b)—that ZTX does not maintain a
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`regular and established place of business in this District and that ZTX has not committed acts of
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`infringement in this District. Id. at 15-17. Notably, however, the Motion to Dismiss only argues
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`that ZTA does not maintain a regular and established place of business in this District; it did not
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`argue that ZTA has not committed acts of infringement in this District. Id. at 17-20. AGIS
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`identified ZTE’s failure to address this argument in its opposition (Dkt. 46 at 15), to which ZTE
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`responded for the first time in reply that ZTA “denies any acts of infringement” and that AGIS
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`failed to properly allege infringement (Dkt. 51 at 4, 4 n.7). But, as AGIS pointed out in its sur-
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`reply, ZTE waived its argument that the acts of infringement requirement was not satisfied as to
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`ZTA by failing to make such an argument in its Motion to Dismiss, and any attempt to resurrect
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`it in its reply fails. Dkt. 52 at 2-3; see Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App’x 307, 315
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`(5th Cir. 2008) (“It is the practice of this court and the district courts to refuse to consider
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`arguments raised for the first time in reply briefs”).
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`ZTE’s argument that it did not waive its acts of infringement argument as to ZTA (Dkt.
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`54 at 2-3) fails.1 Despite failing to cite any authority for its position, ZTE argues that its general
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`statement in its introduction of its Motion to Dismiss (Dkt. 38 at 1) and/or in its Local Rule
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`1 ZTE’s discussion of a clerical error made in AGIS’s sur-reply and declaration of Vincent Rubino (Dkt. 54 at 2 n.2)
`is irrelevant to the instant motion. As stated in AGIS’s unopposed motion for leave to file a corrected sur-reply (Dkt.
`53), AGIS explained that after being notified by counsel for ZTE that AGIS submitted an incorrect exhibit and cited
`the incorrect exhibit in the Rubino Declaration, AGIS agreed to correct such clerical error, and in fact did so on
`February 7, 2018.
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`2
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`Case 2:17-cv-00517-JRG Document 57 Filed 02/26/18 Page 3 of 6 PageID #: 788
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`7(a)(1) statement of issues (id.) that that no Defendant has committed acts of infringement
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`somehow preserves its acts of infringement argument as to ZTA. Dkt. 54 at 2. ZTE is wrong.
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`Pursuant to Fifth Circuit precedent, a point asserted, but “not adequately briefed” is waived.
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`Chen v. Ochsner Clinic Found., 630 F. App’x 218, 228 (5th Cir. 2015); see also Cinel v.
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`Connick, 15 F.3d 1338, 1345 (5th Cir.1994) (“A party who inadequately briefs an issue is
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`considered to have abandoned the claim.”); Watson v. Astrue, 2013 WL 6662828, at *2 (E.D.
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`Tex. Dec. 17, 2013) (same). It is indisputable that ZTE did not adequately brief the acts of
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`infringement requirement as to ZTA in its Motion to Dismiss, particularly in light of the full
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`briefing on the same issue as to ZTX. Compare Dkt. 38 at 17-20 (arguing that neither
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`requirements of the second prong of 1400(b) were satisfied as to ZTX), with id. at 15-17 (arguing
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`only that ZTA does not maintain a regular and established place of business in this District).
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`Thus, as AGIS accurately addressed in its sur-reply, ZTE waived this argument.
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`B.
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`AGIS Made No New Arguments In Its Sur-Reply
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`AGIS’s arguments in its sur-reply were limited to responses to arguments raised by ZTE
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`in its briefing. Additionally, no new evidence was introduced in the sur-reply. ZTE moved to
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`dismiss for, inter alia, improper venue pursuant to § 1400(b). Dkt. 38 at 12-20. The second
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`prong of § 1400(b) provides that venue in a patent infringement case is proper “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.” 28 U.S.C. § 1400(b). After setting forth this exact standard in the “Legal Standard”
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`section of its opposition (Dkt. 46 at 9-10), AGIS addressed venue as to ZTA in two sub-sections
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`with clearly delineated headings: 1) ZTA Has Engaged in Acts of Infringement in This District;
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`and 2) ZTA Has a Regular and Established Place of Business in This District. Dkt. 46 at 15. In
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`3
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`Case 2:17-cv-00517-JRG Document 57 Filed 02/26/18 Page 4 of 6 PageID #: 789
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`the “Acts of Infringement” section, AGIS argues that ZTA does not dispute that it engaged in
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`infringing activities in this District as alleged by AGIS. Id.
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`ZTE’s argument that AGIS asserted for the first time in its sur-reply that ZTA waived the
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`acts of infringement requirement of 1400(b), and thus, ZTE has had no opportunity to respond to
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`this argument (Dkt. 54 at 3) is wrong. As discussed above, in its opposition, AGIS argued that
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`ZTA waived its argument that ZTA did not satisfy the acts of infringement requirement of
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`1400(b) by arguing “ZTA does not dispute that it has engaged in infringing activities in this
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`District as alleged in the Amended Complaint.” Dkt. 46 at 15. Not only did AGIS make this
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`argument in its opposition (Dkt. 46 at 9), ZTE indeed attempted to rebut AGIS’s argument in its
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`reply (Dkt. 51 at 4 n.7 (“AGIS incorrectly alleges that ‘ZTA does not dispute’ infringement . . .
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`.”); id. at 4 (“ZTA also denies any acts of infringement)).2 In AGIS’ sur-reply, no new argument
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`was made, nor was any new evidence introduced. ZTE does not now get a second bite at the
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`apple to make an argument that it failed to make in its opening brief by making erroneous
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`allegations about the arguments timely and appropriately raised by AGIS. Gillaspy, 278 F. App’x
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`at 315.
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`Accordingly, ZTE’s Motion for Leave should be dismissed in its entirety.
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`II.
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`CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court deny ZTE’s Motion
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`for Leave.
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`2 ZTE also argues that it limited its response to AGIS’s argument to discussion of allegations in the Amended
`Complaint. Dkt. 54 at 3. This argument ignores the fact that ZTE cannot raise an argument (i.e., that ZTA does not
`satisfy the acts of infringement requirement) for the first time in reply (Gillaspy, 278 F. App’x at 315). Moreover,
`ZTE cannot submit a motion for leave seeking additional briefing because it is not satisfied with the arguments it
`made in its original briefing.
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`4
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`Case 2:17-cv-00517-JRG Document 57 Filed 02/26/18 Page 5 of 6 PageID #: 790
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`Dated: February 26, 2018
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`BROWN RUDNICK LLP
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`/s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`Texas Bar No. 2219392
`Email: afabricant@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 W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
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`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
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`ATTORNEYS FOR PLAINTIFF,
`AGIS SOFTWARE DEVELOPMENT, LLC
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`5
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`Case 2:17-cv-00517-JRG Document 57 Filed 02/26/18 Page 6 of 6 PageID #: 791
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 26, 2018 all counsel of record who are deemed to have
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`consented to electronic service are being served with a true and correct copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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