Case 2:21-cv-00072-JRG-RSP Document 212 Filed 11/10/21 Page 1 of 14 PageID #: 7448
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`AGIS SOFTWARE DEVELOPMENT
`LLC,
`
` Plaintiff,
`
`v.
`
`T-MOBILE USA, INC. and T-MOBILE
`US, INC.,
`
`LYFT, INC
`
`
`Defendants.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`REPORT AND RECOMMENDATION
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`Case No. 2:21-cv-00072-JRG-RSP
` (LEAD CASE)
`
`
`Case No. 2:21-cv-00024-JRG-RSP
` (MEMBER CASE)
`
`
`
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`Before the Court is Defendant Lyft, Inc.’s (“Lyft”) Motion to Dismiss for Improper Venue
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`(“Lyft’s MTD”). Dkt. No. 30. Lyft’s Motion requests the Court to dismiss the above-captioned
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`matter pursuant to 28 U.S.C. § 1406(a) or, alternatively, to transfer this case to the Northern
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`District of California or “another district where venue is proper as to Lyft.” Id. at 2.
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`I.
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`BACKGROUND
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`On March 3, 2021, AGIS filed its complaint against Defendants T-Mobile USA, Inc. and
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`T-Mobile US, Inc. Dkt. No. 1. On April 16, 2021, the Court consolidated similar actions against
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`Lyft, Uber, and WhatsApp with the above-captioned matter as the lead case. Dkt. No. 14. On April
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`27, 2021, Lyft filed the present motion, Dkt. No. 30, and the Court held an evidentiary hearing on
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`Lyft’s MTD on September 29, 2021. Dkt. No. 125.
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`II.
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`LEGAL STANDARDS
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`A. Venue
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`A party may challenge venue by asserting that venue is improper in a responsive pleading
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`or by filing a motion. Fed. R. Civ. P. 12(b)(3). A court may decide whether venue is proper based
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`Case 2:21-cv-00072-JRG-RSP Document 212 Filed 11/10/21 Page 2 of 14 PageID #: 7449
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`upon “(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced
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`in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of
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`disputed facts.” Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009) (quoting Ginter
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`ex rel. Ballard v. Belcher, Prendergast & Laport, 536 F.3d 439, 449 (5th Cir. 2008)). Additionally,
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`when resolving the matter on the pleadings, the Court “must accept as true all allegations in the
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`complaint and resolve all conflicts in favor of the plaintiff.” Mayfield v. Sallyport Glob. Holdings,
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`Inc., No. 6:13-CV-459, 2014 WL 978685, at *1 (E.D. Tex. Mar. 5, 2014) (citing Ambraco,570
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`F.3d at 237–38).
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`Venue facts are to be examined as of the date the suit is filed.1 If venue is improper, the
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`Court must dismiss, “or if it be in the interest of justice, transfer such case to any district or division
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`in which it could have been brought.” 28 U.S.C. § 1406(a); Fed. R. Civ. P. 12(b)(3).
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`B. Patent Venue: 28 U.S.C. § 1400(b)
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`In matters unique to patent law, Federal Circuit law—rather than the law of the regional
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`circuit—applies. In re Cray, 871 F.3d 1355, 1360 (Fed. Cir. 2017) (citing Midwest Indus., Inc. v.
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`Karavan Trailers, Inc., 175 F.3d 1356, 1359 (Fed. Cir. 1999)). “Section 1400(b) is unique to patent
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`law, and ‘constitute[s] the exclusive provision controlling venue in patent infringement
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`proceedings’ . . . .” Id. (quoting TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct.
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`1514, 1518 (2017)) (alterations in original). Thus, Federal Circuit law governs the analysis of what
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`§ 1400(b) requires. Id. Additionally, under § 1400(b), “upon motion by the Defendant challenging
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`1 During the evidentiary hearing, AGIS cited In re Google, 949 F.3d 1338 (Fed. Cir. 2020) to support its argument
`that venue is determined as of a time other than the time of filing. [Hearing 70, 4]. However, the footnote AGIS
`cited merely demonstrates that there is a circuit split as to what time venue is determined. See In re Google, 949
`F.3d at 1340 n.1. The footnote goes on to state, “We need not decide the correct standard, because the GGC servers
`were present in the district both at the time the cause of action accrued and at the time the complaint was filed.” Id.
`Because AGIS has not cited any binding authority that holds venue is determined at a time other than the time of
`filing the complaint, this Court will follow the majority position that the time of filing suit governs venue.
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`Case 2:21-cv-00072-JRG-RSP Document 212 Filed 11/10/21 Page 3 of 14 PageID #: 7450
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`venue in a patent case, the Plaintiff bears the burden of establishing proper venue.” In re ZTE
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`(USA) Inc., 890 F.3d 1008, 1013 (Fed. Cir. 2018).
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`Turning to the language of 28 U.S.C. § 1400(b), it states: “Any civil action for patent
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`infringement may be brought in the judicial district where the defendant resides, or where the
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`defendant has committed acts of infringement and has a regular and established place of business.”
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`Id. Thus, under §1400(b), venue is proper: (1) “where the defendant resides” or (2) “where the
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`defendant has committed acts of infringement and has a regular and established place of business.”
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`For the purposes of § 1400(b), a domestic corporation resides only in its state of incorporation. TC
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`Heartland, 137 S.Ct. at 1520.
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`If venue is not proper based on the defendant’s residence, venue may still be proper if the
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`defendant has both “committed acts of infringement” and “has a regular and established place of
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`business” in the district. For the former, “[w]here a complaint alleges infringement, the allegations
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`‘satisfy the acts of infringement requirement of § 1400(b)’ ‘[a]lthough the [] allegations may be
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`contested.’” Seven Networks, LLC v. Google LLC, 315 F.Supp.3d 933, 942 (E.D. Tex. 2017)
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`(quoting Symbology Innovations, LLC v. Lego Sys., Inc., 282 F.Supp.3d 916, 928 (E.D. Va. 2017))
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`(alterations in original). For a regular and established place of business, Cray held that there are
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`three requirements: “(1) there must be a physical place in the district; (2) it must be a regular and
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`established place of business; and (3) it must be the place of the defendant.” Cray, 871 F.3d at
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`1360. When determining these requirements, the Federal Circuit has emphasized that “each case
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`depends on its own facts” and “no one fact is controlling.” Id. at 1362, 1366.
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`“[T]he first requirement is that there ‘must be a physical place in the district.’” Id. at 1362.
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`According to Cray, “a place [is] a building or a part of a building set apart for any purpose or
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`quarters of any kind from which business is conducted.” Id. (internal quotations marks omitted).
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`Furthermore, “[w]hile the ‘place’ need not be a ‘fixed physical presence in the sense of a formal
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`office or store,’ there must still be a physical, geographical location in the district from which the
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`business of the defendant is carried out.” Id. (quoting In re Cordis Corp., 769 F.2d 733, 737 (Fed.
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`Cir. 1985)), Additionally, a “virtual space” cannot satisfy this requirement. Cray, 871 F.3d at 1362.
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`The second requirement is that the physical place be a regular and established place of
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`business. Id. “A business may be ‘regular,’ for example, if it operates in a ‘steady[,] uniform[,]
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`orderly[, and] methodical’ manner.” Id. (internal citations omitted) (alterations in original). In
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`addition to regular, the place of business must be established. Id. at 1363. “The word contains the
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`root ‘stable,’ indicating that the place of business is not transient. It directs that the place in
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`question must be ‘settle[d] certainly, or fix[ed] permanently.’” Id. Essentially, the place of business
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`“must for a meaningful time period be stable, established.” Id.
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`The third requirement is that the place, “[a]s the statute indicates, [] must be a place of the
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`defendant . . . . Thus, the defendant must establish or ratify the place of business.” Id. (emphasis
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`in the original). When considering whether a place is of the defendant, a court should consider:
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`“whether the defendant owns or leases the place”; “whether the defendant conditioned
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`employment on an employee’s continued residence in the district”; or whether the defendant does
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`“exercise other attributes of possession or control over the place.” Id. Another relevant
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`consideration is “whether the defendant lists the alleged place of business on a website, or in a
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`telephone or other directory; or places its name on a sign associated with or on the building itself.
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`. . .” Cray, 871 F.3d at 1363-64. “But, the mere fact that defendant has advertised . . . is not
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`sufficient.” Id. at 1364. Furthermore, a “place of business” does not require a real property
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`ownership or a leasehold interest in real property. In re Google LLC, 949 F.3d 1338, 1343–44
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`(Fed. Cir. 2020). But, “a regular and established place of business requires the regular, physical
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`presence of an employee or other agent of the defendant conducting the defendant’s business at
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`the alleged place of business.” Id. at 1345 (internal quotations marks omitted). Finally. this
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`requirement is satisfied if the defendant “actually engage[s]” in business from the physical location
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`in the District. Intellectual Ventures II LLC v. FedEx Corp., No. 2:16-cv-980-JRG, 2017 WL
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`5630023, at *7 (E.D. Tex. Nov. 22, 2017).
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`C. Agency
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`“An agency relationship is a ‘fiduciary relationship that arises when one person (a
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`principal) manifests assent to another person (an agent) that the agent shall act on the principal’s
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`behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents
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`to act.” Google, 949 F.3d at1345 (quoting Restatement (Third) of Agency § 1.01). “The essential
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`elements of agency are (1) the principal’s ‘right to direct or control’ the agent’s actions, (2) ‘the
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`manifestation of consent by [the principal] to [the agent] that the [agent] shall act on his behalf,”
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`and (3) the ‘consent by the [agent] to act.’” Id. (citing Meyer v. Holley, 537 U.S. 280, 286 (2003))
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`(alterations in the original).
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`D. Transfer
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`If venue is not proper in a district, the district court may either dismiss, or “if it be in the
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`interest of justice, transfer such case to any district or division in which it could have been
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`brought.” 28 U.S.C. § 1406(a). “Transfer is typically considered more in the interest of justice than
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`dismissal.” Personal Audio, 280 F.Supp.3d at 936. When deciding where to transfer under §
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`1406(a), a court may consider the 28 U.S.C. § 1404(a) convenience factors. See Brooks & Baker,
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`LLC v. Flambeau, Inc., Case No. 2:10-cv-146-TJW-CE, 2011 WL 4591905, at *6 (E.D. Tex. Sept.
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`30, 2011). However, those factors do not control the § 1406(a) transfer analysis. See Uniloc USA,
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`Inc. v. Nutanix, Inc., Case No. 2:17-cv-00174-JRG, 2017 WL 11527109, at *5 (E.D. Tex. Dec. 6,
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`2017) (“prior orders under § 1404(a) are not binding or controlling in a § 1406 transfer analysis,
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`which does not include the same private and public interest considerations of convenience as those
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`involved in a § 1404(a) analysis.”). Section § 1406(a) only requires that a district court transfer the
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`case to a district “in which [the case] could have been brought.” 28 U.S.C. § 1406(a).
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`III. ANALYSIS
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`A. Venue
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`Lyft argues that venue is not proper as to Lyft in this district because Lyft does not reside
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`in the district and does not have a regular and established place of business in the district. Dkt.
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`No. 30 at 3-4. Because Lyft, both now and at the time filing, is and was incorporated in Delaware,
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`id. at 3, venue is only proper if Lyft had committed acts of infringement and had a regular and
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`established place of business in the District at the time of filing. The acts of infringement
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`requirement is met by the allegations in AGIS’s complaint (Case No.: 2:21-cv-00024-JRG-RSP,
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`Dkt. No. 1, at ¶¶ 25-102), because the allegations satisfy the acts of infringement requirement.
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`Seven Networks, 315 F.Supp.3d at 942.
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`Thus, venue is proper if Lyft had a regular and established place of business in the District
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`at the time of filing. AGIS argues four alternatives that could serve as a regular and established
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`place of Lyft. Dkt. No. 64 at 9–16. These alternatives are: (1) Lyft offering services through
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`different vendors in the District, specifically an Express Drive location at a Pep Boys in Plano,
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`TX, (2) Lyft controlled vehicles operating in the District; (3) Lyft Mobile Services (“LMS”), and
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`(4) various “Pick-Up Locations” located in the District. Id. Lyft argues that each of these
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`alternatives fails to qualify as a regular and established place of Lyft in the District. Dkt. No. 30 at
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`8–18.
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`In addition to challenging the regular and established place of business requirement for all
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`the patents-in-suit, Lyft argues that AGIS cannot establish that Lyft has committed acts of
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`infringement specific to U.S. Patent 10,341,838 (“the ’838 Patent”) in the District. Id. at 5, 18–19.
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`AGIS argues that its pleadings are sufficient to satisfy the acts of infringement requirement at this
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`stage of litigation, Dkt. No. 64 at 16-20, and that Lyft’s “Motion is not the appropriate place for
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`the parties to litigate factual and/or claim construction issues regarding infringement.” Id. at 19.
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`Finally, AGIS argues that the Court should allow limited venue discovery. Id. at 20.
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`1. Lyft Services Through Vendors in the District
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`AGIS argues that Lyft’s relationship with various vendors located in the District can serve
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`as a regular and established place of business of Lyft. Specifically, AGIS asserts that Lyft
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`maintains an Express Drive location, through a partnership with Hertz Corporation and Pep Boys
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`Manny Moe & Jack of Delaware Inc, at 928 West Spring Creek Parkway, Plano, Texas 75023
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`(“Express Drive Plano”) and that this location is a “regular and established physical place of
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`business” in the District for Lyft. Dkt. No. 64 at 9. Lyft represents that Express Drive is a program
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`through which Lyft drivers may rent cars that are provided and managed by Express Drive partners
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`at an Express Drive site. Dkt. No. 30 at 6 (citing Dkt. No. 30-1 at ¶ 5–6). Lyft argues two
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`independent reasons why Express Drive Plano is not a place of Lyft under § 1400(b): (1) Lyft
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`stopped operating out of the location in August 2019, over a year before AGIS filed its lawsuit,
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`Dkt. No. 30 at 4, and (2) alternatively, Lyft contends this location cannot be a place of business of
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`Lyft because it has been and is currently owned by Pep Boys. Id. at 6.
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`For the first reason, AGIS contends that Express Drive Plano was not closed when AGIS
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`filed its lawsuit. According to AGIS, “Lyft’s own website offers the ‘Lyft Express Drive Plano’
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`as a pick-up location.” Dkt. No. 64 at 9 (citing Dkt. No. 64-3). However, Exhibit B—which AGIS
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`cites to support its assertion—does not list the Express Drive Plano address nor any other Express
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`Drive addresses. See Dkt. No. 64-3. In contrast, Lyft cites to the Declaration of Max Loosen, a
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`regional director at Lyft, to support its assertion that Express Drive Plano was closed at the time
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`of fling. Dkt. No. 30 at 4; Dkt. No. 30-1 at ¶ 1. The Declaration of Mr. Loosen states:
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`Hertz operated a vehicle rental location inside of a Pep Boys located
`at 928 West Spring Creek Parkway, Plano, Texas 75023 from
`December 18, 2017 to August 15, 2019. This location participated
`in the Express Drive program. As of August 15, 2019, this location
`ceased to be an Express Drive site.
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`Id. at ¶ 6. Mr. Loosen again testified during the evidentiary hearing that Express Drive
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`Plano ceased operations in August 2019. [Hearing 40, 12-14].
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`When asked directly by the Court whether AGIS had any evidence that this location
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`continued to operate past August 2019, AGIS stated that “we have agreements between Lyft and
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`Pep Boys that continue through the end of 2021, . . . that state that Pep Boys is to provide Lyft
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`with, among other things, counter space for its employees to conduct the business . . . .” [Hearing
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`21, 20-24]. The agreement between Lyft and Pep Boys (“Pep Boys Agreement”) does not support
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`AGIS’s assertion that the Express Drive Location was open past August 2019 for multiple reasons.
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`First, AGIS failed to show that the Pep Boys Agreement even applied to the Express Drive Plano
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`location. The Pep Boys Agreement, by its own terms, only applies to “each participating location,”
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`Dkt. No. 157-1 at ¶ 9, and nowhere in the Pep Boys Agreement does it list a participating location
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`in Plano. Second, the Express Drive program at the Express Drive Plano was operated by Hertz,
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`not Pep Boys. Dkt. No. 30-1, at ¶ 6; Dkt. No. 157-4 at 9 (“Lyft’s use of the [Express Drive Plano]
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`was governed by Lyft’s agreement with the Hertz Corporation.”). Thus, the Pep Boys Agreement
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`does not contradict Mr. Loosen’s testimony.
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`AGIS also failed to show that the agreement between Lyft and Hertz (the “Hertz
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`Agreement”) applied to the Express Drive Plano location. By the terms of the Hertz Agreement, it
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`only requires that “Hertz shall provide Hertz Rentals to certain Lyft Driver . . . in certain territories
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`. . . .” Dkt. No. 157-2 at ¶ 3.1. Plano is not among the “certain territories” listed, id., and AGIS has
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`not put forth any evidence that the Hertz Agreement applied to the Express Drive Plano location.
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`Additionally, even if Plano was among the certain territories, AGIS does not show that the
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`Hertz Agreement is still in effect. By the terms of the agreement, “[t]he term of this Agreement
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`will begin on the date hereof and shall end at 12:01 AM eastern time on the second anniversary of
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`the date hereof (the ‘Term’) . . . .” Id. at ¶ 13.1. The “Effective Date” of the Hertz Agreement is
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`September 28, 2017, id. at Preamble, therefore the agreement was set to terminate on September
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`28, 2019. AGIS did not provide any evidence to show that the term of the Hertz Agreement was
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`extended past September 29, 2019, which is over a year before AGIS filed its complaint. Instead,
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`AGIS argued that “We [AGIS] have not seen any documentary evidence that there was a
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`termination” of the facility at the Express Drive Plano. [Hearing 19, 22 – 20, 2]. Here, the lack of
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`evidence that contradicts Lyft’s evidence cuts against AGIS because AGIS has the burden of
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`establishing that venue was proper at the time of filing. Because AGIS failed to introduce
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`contradictory evidence, the Court finds that the Express Drive Plano location was closed at the
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`time of filing suit.
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`Alternatively, AGIS argued that Lyft employees could have been at the Express Drive
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`Plano location after August 2019 because Mr. Loosen “did not know when the last time Lyft
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`employees were on the premises or when they stopped doing business there.” [Hearing 20, 13-17].
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`This argument is unpersuasive. Even if Lyft employees went to the Express Drive Plano location
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`after August 2019, AGIS fails to show how often Lyft employees went there. Thus AGIS fails to
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`establish the “regularly” portion of the second requirement under Cray. Because the Court finds
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`the Express Drive Plano location was closed at the time of filing, the Court does not need to address
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`Lyft’s alternate argument as to why the Express Drive Plano cannot be a place of business of Lyft.
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`AGIS next argues that other agreements with vendors in the District can serve as a basis
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`for venue. Specifically, AGIS argues that Lyft employees travel to vendors located in the District
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`whenever these vendors fail to adequately provide maintenance services that are purchased by
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`Lyft’s drivers through Lyft’s mobile application. Id. at [30, 3-14]. These facilities are maintained
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`by other businesses such as: Caliber Auto Care, NTB, Pep Boys, Firestone, Discount Tire, and
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`HuffHines Hyundai. Dkt. No. 157-4 at 17.
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`These repair facilities fail to be regular and established places of Lyft. “[A] regular and
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`established place of business requires the regular, physical presence of an employee or other agent
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`of the defendant conducting the defendant’s business at the alleged place of business.” Google,
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`949 F.3d at 1345. Based on AGIS’s argument, a Lyft employee is not regularly at these repair
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`facilities because a Lyft employee only goes to these locations in response to an issue.
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`Additionally, an agency argument fails because the Court finds that the relationship between these
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`repair facilities and Lyft is one where Lyft is a customer, not a principal.
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`2. Vehicles of Lyft Drivers and Lyft Mobile Services (LMS)
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`The vehicles of Lyft drivers and LMS, which are Lyft-owned vehicles that provide
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`preventative maintenance for vehicles, [Hearing 44, 2-7], are addressed together because these
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`alternatives fail to serve as regular and established places of business for same reason: they are not
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`a physical place and are not “established” as defined by Cray. AGIS argues that “Defendant does
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`not and cannot dispute that these vehicles are physical locations from which the business of
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`Defendant is conducted.” Dkt. No. 64 at 9. AGIS further asserts that the Federal Circuit has held
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`that “a fixed physical location in this district is not a prerequisite to proper venue.” Id. at 15
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`(quoting Cray, 871 F.3d at 1362).
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`
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`AGIS misstates the law. The Federal Circuit in Cray on the page AGIS cites says:
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`“[a]s noted above, when determining venue, the first requirement is
`that there ‘must be a physical place in the district.’ The district
`court erred as a matter of law in holding that ‘a fixed physical
`location in the district is not a prerequisite to proper venue.’
`This interpretation impermissibly expands the statute.
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`Cray, 871 F.3d at 1362 (internal citation omitted). Cray defined a physical place as “a building or
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`a part of a building . . . .” Id. The established portion of the second requirement requires the
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`physical place to be “stable, indicating that the place of business is not transient.” Id. at 1363
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`(internal quotations marks omitted). Thus, even if a vehicle is considered a physical place under
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`the first requirement, which the Court holds that it is not, it fails the second requirement because a
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`vehicle is transient, not established.
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`Because the Court finds that vehicles of Lyft drivers and LMS fail under Cray, these
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`alternatives cannot serve as a regular and established place of Lyft in the District.
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`3. Pick-Up Locations in the District
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`For the final alternative, AGIS argues that various pick-up locations located in the District
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`are regular and established places of Lyft. Under this alternative, AGIS has identified the following
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`locations that it asserts are places of Lyft: Tyler Pounds Regional Airport (“Tyler Airport”), Dkt.
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`No. 64 at 14; the Flower Mound Lyft Zone (“Flower Mound”); the Highland Village Lyft Zone
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`(“Highland”); and the University of North Texas Zone (“UNT Zone”). Dkt No. 90 at 3. For the
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`Tyler Airport, AGIS asserts that Lyft controls a specific location at the Tyler Airport from which
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`Lyft picks up passengers. Dkt. No. 64 at 14. For Flower Mound and Highland, Lyft and the Denton
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`County Transportation Authority (“DCTA”) have partnered to establish “designated geofenced
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`Case 2:21-cv-00072-JRG-RSP Document 212 Filed 11/10/21 Page 12 of 14 PageID #: 7459
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`zones” where certain riders receive discounted rides through Lyft. Dkt. No. 90 at 3. Finally, Lyft
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`provides discounted rides on campus to UNT students around its campuses, including three
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`campuses located in the District: Denton, Frisco, and McKinney. Id.
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`All four of the identified pick-up locations fail under Cray. Beginning with the Tyler
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`Airport, AGIS arguably identifies a physical place; however, AGIS fails to show that (1) it is a
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`regular and established place of business and (2) fails to show that it is a place of Lyft. The portion
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`of the Tyler Airport AGIS identifies—the place where passengers could be picked up by a Lyft
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`driver—arguably could be considered “part of a building” under Cray, specifically part of the
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`terminal thereby satisfying the first requirement.
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`However, AGIS does not provide any evidence to show that Lyft regularly transacts
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`business at this portion of the Tyler Airport, and most importantly, AGIS does not provide any
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`evidence that shows this portion of the Tyler Airport is a place of Lyft. AGIS fails to: provide
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`evidence that employees are regularly physically present at the Tyler Airport; point to any signs
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`or markings indicating it is a place of Lyft; and provide any evidence indicating that Lyft possesses
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`or controls this portion of the Tyler Airport. AGIS argues that by maintaining a webpage that
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`instructs its drivers to “pick up at arrivals and to drop off at departures,” Lyft exhibits enough
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`control over this physical space to make it a place of Lyft. [Hearing 60, 7-24]. These general
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`instructions standing alone are not enough to establish the Tyler Airport as a place of Lyft.
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`Moving to Flower Mound, Highland, and UNT Zone, AGIS fails to identify a physical
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`place under the first requirement and fails to show that Lyft has sufficient possession or control
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`over these zones to make them a place of Lyft. During the evidentiary hearing, Mr. Loosen stated
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`that the zones were represented by “digital boundaries.” [Hearing 57, 16]. Thus, these zones are
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`not physical zones, but rather virtual representations of a zone for the purposes of the Lyft mobile
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`Case 2:21-cv-00072-JRG-RSP Document 212 Filed 11/10/21 Page 13 of 14 PageID #: 7460
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`application. The sones cover substantial portions of the communities, as opposed to discrete
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`locations akin to a traditional cab stand. Additionally, AGIS fails to provide evidence to show that
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`Lyft possesses or controls these zones. AGIS attempts to argue that Lyft controls these zones by
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`offering lower prices, [Hearing 16, 10-18], but the fact that Lyft has a pricing arrangement with
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`the DCTA or UNT is not enough by itself to give Lyft sufficient possession or control over these
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`zones to make them places of Lyft. If AGIS could show that Lyft was given the right to exclude
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`its competitors from these zones or exclude competitors from specific pick-up locations within the
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`zones, both of these would be relevant indications of possession or control. In sum, all of the
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`identified pick-up locations fail under Cray.
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`4. Conclusion as to Venue
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`All four alternatives—vendor locations, LMS, vehicles controlled by Lyft, and pick-up
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`locations—either fail as matter of law under Cray or lack factual support in the record. The Court
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`finds it inappropriate to order further venue discovery, at this late stage, beyond that already
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`conducted because AGIS has not made a sufficiently particularized showing of need. See Blitzsafe
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`Texas LLC v. Mitsubishi Elec. Corp., No. 2:17-cv-00430-JRG, 2019 WL 2210686, at *3 (E.D.
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`Tex. May 22, 2019) (quoting Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir.
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`2000)). Furthermore, the Court does not need to analyze whether AGIS sufficiently pleaded the
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`“acts of infringement” requirement for the ’838 because all of the alternatives for a regular and
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`established place of business failed. All that is left to analyze is whether the case against Lyft
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`should be dismissed or transferred.
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`B. Transfer
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`Because venue is improper in this District, Lyft requests the Court to either dismiss, or
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`alternatively, transfer this case to the Northern District of California or “another district in which
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`venue is proper as to Lyft.” Dkt. No. 30 at 2. AGIS requests transfer to the Western District of
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`Texas in the event the Court finds venue improper, to which Lyft objects. Dkt. No. 64 at 21; No.
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`87 at 5. Since the parties disagree about an appropriate venue for transfer, and the record has not
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`been fully developed on the most appropriate other venue, the Court concludes that dismissal
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`without prejudice is the most appropriate course.
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`C. CONCLUSION
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`AGIS has failed to establish that venue is proper under 28 U.S.C. § 1400(b) as to Lyft;
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`therefore, under 28 U.S.C. § 1406(a), this case as to Lyft (C.A. No. 2:21-cv-024) should be
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`dismissed without prejudice. Accordingly, it is recommended that Defendant Lyft’s Motion
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`(Dkt. No. 30) be GRANTED..
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`A party’s failure to file written objections
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`to
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`the findings, conclusions, and
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`recommendations contained in this report within 14 days bars that party from de novo review by
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`the District Judge of those findings, conclusions, and recommendations and, except on grounds of
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`plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted
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`and adopted by the district court. Fed. R. Civ. P. 72(b)(2); see Douglass v. United Servs. Auto
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`Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). Any objection to the Report and
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`Recommendation must be filed in ECF under the event “Objection to Report and
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`Recommendations [cv, respoth]” or it may not be considered by the District Judge.
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`14
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`____________________________________
`ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
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`SIGNED this 3rd day of January, 2012.
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`SIGNED this 10th day of November, 2021.
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`