Case 2:17-cv-00517-JRG Document 69 Filed 06/08/18 Page 1 of 5 PageID #: 977
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`AGIS SOFTWARE DEVELOPMENT,
`LLC,
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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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`§
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S SUPPLEMENTAL BRIEF
`IN SUPPORT OF ITS OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
`PLAINTIFF’S AMENDED COMPLAINT FOR IMPROPER VENUE OR, IN THE
`ALTERNATIVE, TO TRANSFER (DKT. 38)
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`Plaintiff,
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`Defendants.
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`v.
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`ZTE CORPORATION, ET AL.,
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`Case 2:17-cv-00517-JRG Document 69 Filed 06/08/18 Page 2 of 5 PageID #: 978
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`On May 15, 2018, the Federal Circuit issued a precedential decision in In re
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`Bigcommerce Inc., Nos. 2018-120, 2018-122, 890 F.3d 978 (Fed. Cir. 2018) (“In re
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`Bigcommerce”) addressing the unsettled law regarding which judicial district a domestic
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`corporation “resides” for purposes of venue under 28 U.S.C. 1400(b) when it is incorporated in a
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`state having multiple judicial districts. Shortly thereafter, Plaintiff AGIS Software Development,
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`LLC (“AGIS”) filed an Unopposed Motion for Leave to File A Supplemental Brief in Support of
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`its Opposition to Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint for Improper
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`Venue or, in the Alternative, to Transfer to address the effect In re Bigcommerce, Inc. has on
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`venue as to Defendant ZTE (TX), Inc. (“ZTX”). Dkt. 65. This Court granted AGIS’s request on
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`June 4, 2018. Dkt. 67. In accordance with Your Honor’s Order, AGIS, by and through its
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`undersigned counsel hereby submits this Supplemental Brief in support of its Opposition to
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`Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint for Improper Venue or, in the
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`Alternative, to Transfer.
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`I.
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`VENUE IS PROPER AS TO DEFENDANT ZTX BASED ON IN RE
`BIGCOMMERCE
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`Venue is proper over Defendant ZTX pursuant to the Federal Circuit’s recent,
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`precedential decision in In re Bigcommerce. Venue for domestic defendants in patent
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`infringement cases is governed by 28 U.S.C. § 1400(b). TC Heartland LLC v. Kraft Foods
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`Group Brands LLC, 137 S. Ct. 1514, 1517 (2017). Section 1400(b) provides that “[a]ny civil
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`action for patent infringement may be brought [1] in the judicial district where the defendant
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`resides, or [2] where the defendant has committed acts of infringement a patent infringement
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`case may be brought against a domestic defendant in the judicial district where the defendant
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`resides. With respect to the first test, in TC Heartland, the U.S. Supreme Court held that a
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`domestic defendant corporation “resides” in its state of incorporation. TC Heartland, 137 S. Ct.
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`Case 2:17-cv-00517-JRG Document 69 Filed 06/08/18 Page 3 of 5 PageID #: 979
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`at 1517. In In re Bigcommerce, the Federal Circuit held that “for purposes of determining venue
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`under § 1400(b) in a state having multiple judicial districts, a corporate defendant shall be
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`considered to ‘reside’ only in the single judicial district within that state where it maintains a
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`principal place of business, or failing that, the judicial district in which its registered office is
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`located.” In re Bigcommerce, 890 F.3d at 986. Until the decision in In re Bigcommerce was
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`rendered, this question remained “undecided” and “unsettled.” Id. at 981.
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`Pursuant to In re Bigcommerce, venue is proper as to ZTX because ZTX “resides” in this
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`District. The new law set forth by the Federal Circuit applies to the instant case because ZTX is
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`incorporated in Texas (Dkt. 38-1 ¶ 14 (“ZTX is incorporated in Texas in 2013); Dkt. 38 at 3) and
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`Texas is a state having multiple judicial districts (Ex. 12 at 4 (official U.S. Courts website
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`showing that Texas has four judicial districts). Since ZTX concedes that its principal place of
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`business is in California, not Texas (Dkt. 38-1 ¶ 13 (“ZTX’s principal place of business is
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`located in Milpitas, California”); Dkt. 38 at 3), venue is proper over ZTX “in the judicial district
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`in which its registered office is located.” Pursuant to the Texas Comptroller of Public Accounts
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`website, ZTX’s registered office is located at 2500 Dallas Parkway, Suite 600, Plano, Texas
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`75093, which is in this District. Ex. 13; see also Dkt. 38-1 ¶ 14; Dkt. 38 at 4. Accordingly,
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`based on the new, precedential law set forth by the Federal Circuit, venue is proper as to ZTX in
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`this District.
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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 Defendants’
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`Motion to Dismiss, or in the Alternative, Transfer.
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`Dated: June 8, 2018
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`Respectfully submitted,
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`BROWN RUDNICK LLP
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`/s/ Alfred R. Fabricant
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`2
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`Case 2:17-cv-00517-JRG Document 69 Filed 06/08/18 Page 4 of 5 PageID #: 980
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`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
`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
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT, LLC
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`3
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`Case 2:17-cv-00517-JRG Document 69 Filed 06/08/18 Page 5 of 5 PageID #: 981
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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 June 8, 2018.
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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