Case 2:17-cv-00517-JRG Document 66 Filed 05/23/18 Page 1 of 5 PageID #: 949
`
`
`
`AGIS SOFTWARE DEVELOPMENT,
`LLC,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S
`RESPONSE TO DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
`IN SUPPORT OF THEIR MOTION TO DISMISS FOR IMPROPER
`VENUE, OR IN THE ALTERNATIVE, TO TRANSFER (DKT. 63)
`
`Plaintiff AGIS Software Development, LLC (“AGIS”) files this Response to Defendants
`
`
`
`
`
`Plaintiff,
`
`v.
`
`ZTE CORPORATION, ET AL.,
`
`
`Defendants.
`
`
`
`Case No. 2:17-cv-517-JRG
`
`JURY TRIAL DEMANDED
`
`
`ZTE (USA) Inc.’s and ZTE (TX), Inc.’s (collectively, “ZTE” or “Defendants”) Notice of
`
`Supplemental Authority (Dkt. 63) in which Defendants submitted a ruling on a petition for
`
`mandamus, in In re ZTE (USA) Inc., No. 2018-113, Dkt. No. 39 (Fed. Cir. May 14, 2018) (“In re
`
`ZTE”), which recently issued on May 14, 2018 from the Court of Appeals for the Federal Circuit,
`
`as supplemental authority that is relevant to Defendants’ Motion to Dismiss for Improper Venue
`
`or, in the alternative, Motion to Transfer (Dkt. 38).
`
`In In re ZTE, the Federal Circuit granted the petitioner’s writ of mandamus vacating the
`
`district court’s denial of petitioner’s motion to dismiss for improper venue under 28 U.S.C. §
`
`1400(b) and remanded the motion for reconsideration. Dkt. 63-1 at 2. The Court concluded: (1)
`
`Federal Circuit law governs the placement of the burden of persuasion on the propriety of venue
`
`under § 1400(b) (id. at 6); (2) a plaintiff bears the burden of establishing proper venue (id. at 8-
`
`9); and (3) to establish whether a place of business in the district is a regular and established
`
`
`
`

`

`Case 2:17-cv-00517-JRG Document 66 Filed 05/23/18 Page 2 of 5 PageID #: 950
`
`
`
`place of business of the defendant sufficient to establish venue pursuant to § 1400(b), a district
`
`court must give “reasoned consideration” to all relevant factors, including the non-exhaustive
`
`factors set forth in In re Cray, of the relationship between the place of business in the district and
`
`the defendant (id. at 11).
`
`Because AGIS’s briefing establishes that it has met its burden to establish that venue is
`
`proper in this District, In re ZTE does not alter the conclusion that venue is proper as to
`
`Defendant ZTE (USA), Inc. in the instant case. Dkt. 46 at 12-20; Dkt. 52 at 1-6.1 As to the
`
`“regular and established place of business” test, in In re ZTE, the Federal Circuit asked the
`
`district court to conduct a new, fact-specific analysis that considered all factors relevant to the
`
`determination as to whether the place of business in the district constitutes a place of business of
`
`the petitioner, including the non-exhaustive factors set forth in In re Cray, Inc., 871 F.3d 1360
`
`(Fed. Cir. 2017). Dkt. 63-1 at 11-12. The Federal Circuit explained that the district court had
`
`previously failed to consider certain relevant factors, including whether the petitioner exercises
`
`attributes of possession or control over the call center in the district or the customer service
`
`representatives at the call center (id. at 12) and “whether any signage on, about, or relating to the
`
`call center associates the space as belonging to [defendant]” (id.). These factors and more have
`
`already been briefed by the parties. For example, Defendants admit: (1) ZTE (USA), Inc.
`
`established the call center in the District for the purpose of providing customer support services
`
`to ZTE (USA), Inc. customers (Dkt. 51-2 ¶ 5; Dkt. 38-2 ¶ 8); (2) ZTE provides the call center
`
`with materials that explain the operation of and changes to ZTE (USA), Inc. products, which the
`
`call center uses to train customer service representatives (Dkt. 38-2 ¶ 14); (3) ZTE (USA), Inc.’s
`
`customer-facing website advertises a customer support telephone number and a telephone
`
`
`1 In the event that the Court finds otherwise, AGIS urges the Court to grant its request for venue discovery (see Dkt.
`46 at 19-20) so that AGIS may gather the facts necessary to carry its burden of proof.
`
`
`
`2
`
`

`

`Case 2:17-cv-00517-JRG Document 66 Filed 05/23/18 Page 3 of 5 PageID #: 951
`
`
`
`number for online purchase and sales, both of which are automatically routed to the call center
`
`(id. ¶ 9); (4) individuals call the call center seeking assistance with, and the call center
`
`representatives provide advices about, ZTE (USA), Inc. products (id. ¶ 8); and (5) ZTE (USA),
`
`Inc. employees perform work on behalf of ZTE (USA), Inc. at the call center (id. ¶ 16).
`
`Moreover, Defendants do not contest that ZTE (USA), Inc. directs its customer service
`
`representatives at the call center to affirmatively contact customers in order to resolve issues and
`
`concerns and that the call center customer service representatives research, draft, publish, and
`
`approve articles pertaining to Defendants’ devices, polies, and procedures. Dkt. 46-12; Dkt. 51
`
`at 4-6. Thus, the factors which the Federal Circuit considers relevant are discussed in AGIS’s
`
`briefing, and compel the conclusion that venue is proper as to Defendant ZTE (USA), Inc.
`
`
`
`Dated: May 23, 2018
`
`
`
`
`
`
`
`Respectfully submitted,
`
`BROWN RUDNICK LLP
`
`/s/ Vincent J. Rubino, III
`
`
`
`
`
`Alfred R. Fabricant
`NY 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
`Joseph M. Mercadante
`NY Bar No. 4784930
`Email: jmercadante@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Shahar Harel
`NY Bar No. 4573192
`Email: sharel@brownrudnick.com
`John A. Rubino
`
`
`
`3
`
`

`

`Case 2:17-cv-00517-JRG Document 66 Filed 05/23/18 Page 4 of 5 PageID #: 952
`
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Daniel J. Shea
`NY Bar No. 5430558
`Email: dshea@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
`
`
`
`4
`
`
`
`
`
`

`

`Case 2:17-cv-00517-JRG Document 66 Filed 05/23/18 Page 5 of 5 PageID #: 953
`
`
`
`CERTIFICATE OF SERVICE
`
`
`The undersigned hereby certifies that all counsel of record who are deemed to have
`
`consented to electronic service are being served with a copy of this document via the Court’s
`
`CM/ECF system per Local Rule CV-5(a)(3) on May 23, 2018.
`
`
`
`/s/Vincent J. Rubino, III
`
`
`
` Vincent J. Rubino, III
`
`
`
`
`
`
`
`