Case 2:17-cv-00517-JRG Document 63 Filed 05/17/18 Page 1 of 4 PageID #: 806
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`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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`ZTE CORPORATION, ZTE (USA) INC.,
`AND ZTE (TX), INC.,
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`Plaintiff,
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`v.
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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,
`OR IN THE ALTERNATIVE, TO TRANSFER
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`Defendants ZTE (USA) Inc. and ZTE (TX), Inc. (“ZTE” and “ZTX,” respectively and
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`collectively, “ZTE”) 1 submit the attached ruling on a petition for mandamus, in In re ZTE (USA)
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`Inc., No. 2018-113, Dkt. No. 39 (Fed. Cir. May 14, 2018) (“In re ZTE”), which recently issued
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`on May 14, 2018 from the Court of Appeals for the Federal Circuit, as supplemental authority
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`that is relevant to Defendants’ Motion to Dismiss for Improper Venue or, in the alternative,
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`Motion to Transfer. Case No. 2:17-cv-00517-JRG (consolidated with Case No. 2:14-cv-00517-
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`JRG. No. 57). This ruling on petition for mandamus issued after the last brief in the pending
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`motion, as filed on January 19, 2018, and is directly relevant to disputed issues. See Dkt. No. 46.
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`In re ZTE is relevant to ZTE’s pending Motion to Dismiss, because the Federal Circuit
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`has now rejected many of the same arguments that plaintiff AGIS Software Development, LLC
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`(“AGIS”) relies upon in opposing the dismissal of this action. In the ruling on the petition for
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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 63 Filed 05/17/18 Page 2 of 4 PageID #: 807
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`mandamus, the Federal Circuit resolved two issues, that (1) the burden of proof for venue is an
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`issue of Federal Circuit law, and (2) that the plaintiff bears the burden of proof on venue issues.
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`In re ZTE at 5-10. The Federal Circuit also addressed the district court’s analysis for determining
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`whether a place of business belongs to a defendant. Id. at 10-13. The Federal Circuit found that:
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` “The mere presence of a contractual relationship between iQor and ZTE USA
`pursuant to which iQor provides call center services to ZTE USA’s customers
`does not necessarily make iQor’s call center “a regular and established place of
`business” of ZTE USA in the Eastern District of Texas.” Id. at 11-12.
` “While iQor’s call center ‘has more than sixty dedicated ZTE USA customer
`service representatives,’ neither the magistrate judge nor the district court made
`any findings on the nature of ZTE USA’s relationship with those representatives
`or whether it has any other form of control over any of them. Magistrate Report,
`2017 WL 5163605, at *4. While the magistrate judge found that ZTE USA ‘has at
`least two full-time employees (supervisors) on site at the call center,’ id., the
`determining factor is whether those employees render the call center ‘a place of
`the defendant, not solely a place of the defendant’s employee[s],’ Cray, 871 F.3d
`at 1363.” Id. at 12.
` “The magistrate judge did not consider whether ZTE USA itself possesses, owns,
`leases, or rents the office space for the call center or owns any of the equipment
`located there. The magistrate judge also made no findings as to whether any
`signage on, about, or relating to the call center associates the space as belonging
`to ZTE USA. Finally, the magistrate judge did not make findings regarding
`whether the location of the call center was specified by ZTE USA or whether iQor
`would need permission from ZTE USA to move its call center outside of the
`Eastern District of Texas or to stop working for ZTE USA. Id. at 1363–64. These
`and any other factors relevant to the question of whether American GNC has met
`its burden to show that the call center was ‘of the defendant’ should be considered
`on remand.” Id.
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`Case 2:17-cv-00517-JRG Document 63 Filed 05/17/18 Page 3 of 4 PageID #: 808
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`Dated: May 17, 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 63 Filed 05/17/18 Page 4 of 4 PageID #: 809
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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 May 17, 2018. All other counsel not deemed
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`to have consented to service in such manner will be served via facsimile transmission and/or first
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`class mail.
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
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