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`AGIS SOFTWARE DEVELOPMENT, LLC,
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`Plaintiff,
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`v.
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`HTC CORPORATION,
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`Case No. 2:17-cv-514-JRG
`(LEAD)
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`JURY TRIAL DEMANDED
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`Case No. 2:17-cv-517-JRG
`(CONSOLIDATED)
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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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`Defendant.
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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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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S SUR-REPLY
`IN OPPOSITION TO DEFENDANTS’ OPPOSED MOTION FOR LEAVE TO
`FILE A SUR-SUR-REPLY BRIEF (DKT. 54) IN RESPONSE TO PLAINTIFF’S
`SUR-REPLY (DKT. 52) IN OPPOSITION TO DEFENDANTS’ MOTION TO
`DISMISS PLAINTIFF’S COMPLAINT FOR IMPROPER VENUE OR,
`IN THE ALTERNATIVE, TO TRANFER VENUE (DKT. 46)
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`Plaintiff AGIS Software Development, LLC (“AGIS”), by and through its undersigned
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`counsel, hereby submits this sur-reply 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. 46) to Dismiss Plaintiff’s Complaint for Improper Venue or, in the Alternative, to
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`Transfer Venue. ZTE waived its argument that the acts of infringement requirement of 1400(b)
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`was not satisfied as to ZTA by failing to assert that argument in its opening brief. ZTE’s Motion
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`for Leave is a veiled attempt to assert an argument that it failed to timely and adequately raise in
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`its opening brief, and thus should be denied.
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`AGIS’s sur-reply is factually accurate and is limited to responses to arguments raised by
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`ZTE in its reply, and ZTE has failed to show otherwise. AGIS’s sur-reply accurately explains
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`that ZTE’s opening brief does not argue that the acts of infringement requirement is not satisfied
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`as to ZTA (Dkt 46 at 17-20), and ZTE improperly attempted to correct this omission by asserting
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`the argument for the first time in its reply (Dkt. 51 at 4). Thus, as set forth in AGIS’s sur-reply,
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`ZTE waived this argument. See Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App’x 307, 315 (5th
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`Cir. 2008).
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`ZTE mischaracterizes AGIS’s opposition to ZTE’s motion for leave just like it
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`mischaracterized AGIS’s sur-reply in opposition to ZTE’s motion to dismiss. AGIS has not and
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`does not admit that ZTE argued the acts of infringement requirement was not satisfied as to
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`ZTA. Rather, AGIS specifically argues that ZTE’s general statements in its introduction and in
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`its Rule 7(a)(1) statement are insufficient to preserve an acts of infringement argument as to
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`ZTA. Dkt. 57 at 2-3. Further, contrary to ZTE’s contention, ZTE is required to timely and
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`“adequately brief” the acts of infringement requirement or it is waived. See also Chen v.
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`Ochsner Clinic Found., 630 F. App’x 218, 228 (5th Cir. 2015) (a point that is not adequately
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`briefed is waived).1 Indeed, ZTE recognized this when it argued for nearly a page in its opening
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`brief that the acts of infringement requirement was not satisfied as to ZTX. Dkt. 38 at 15-16.
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`Thus, by failing to raise the same argument with respect to ZTA, ZTE waived it.
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`Accordingly, AGIS respectfully requests that the Court deny ZTE’s Motion for Leave.
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`1 Even if ZTE timely and adequately contested the acts of infringement requirement—it did not—an allegation of
`infringement is sufficient to establish venue is proper. Intellectual Ventures II LLC v. FedEx Corp., No. 2:16-CV-
`00980-JRG, 2017 WL 5630023, at *7–8 (E.D. Tex. Nov. 22, 2017) (Gilstrap, J.).
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`2
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`Dated: March 12, 2018
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`BROWN RUDNICK LLP
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`
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`/s/ Alfred R. Fabricant
`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
`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
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`3
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on March 12, 2018, all counsel of record who are
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`deemed to have consented to electronic service are being served with a 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/ Alfred R. Fabricant
` Alfred R. Fabricant
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