Case 2:21-cv-00072-JRG-RSP Document 217 Filed 11/15/21 Page 1 of 6 PageID #: 7560
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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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`v.
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`T-MOBILE USA, INC., and T-MOBILE
`US, INC.
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`AGIS SOFTWARE DEVELOPMENT LLC
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`v.
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`LYFT, INC.
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`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
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`DEFENDANT LYFT, INC.’S OPPOSED MOTION TO STAY PENDING ADOPTION OF
`THE DISPOSITIVE REPORT AND RECOMMENDATION (DKT. 212)
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`Defendant Lyft, Inc. (“Lyft”) respectfully requests that the Court stay this case and all
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`forthcoming deadlines that apply to Lyft in light of Magistrate Judge Payne’s Report and
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`Recommendation (Dkt. 212) finding venue improper in this case. Further, given the urgency of
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`impending deadlines, Lyft also respectfully requests an expedited briefing schedule and ruling on
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`the present motion as reflected in the motion to expedite briefing filed simultaneously with this
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`motion.
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`AGIS has fourteen days from November 10 to object to the Report and Recommendation,
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`and Lyft will have an opportunity to respond to any objections filed by AGIS before this Court
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`decides whether to adopt the Report and Recommendation. During this objection period, there are
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`deadlines for Lyft and AGIS to serve rebuttal expert reports and respond to various motions filed
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`by both parties, all of which will be moot if the Report and Recommendation is adopted. In
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`Case 2:21-cv-00072-JRG-RSP Document 217 Filed 11/15/21 Page 2 of 6 PageID #: 7561
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`addition to the upcoming deadlines, it has become recently apparent that numerous discovery
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`deficiencies exist in AGIS’s document production and interrogatory responses which would also
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`be rendered moot if the Court adopts the Report and Recommendation. Because of the substantial
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`work associated with both the upcoming deadlines and the need to remedy AGIS’s discovery
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`deficiencies—all of which would be rendered moot if the Court adopts the Report and
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`Recommendation—Lyft respectfully requests a stay of all deadlines in this case with respect to
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`Defendant Lyft, while the Court considers the Report and Recommendation to dismiss this case
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`for improper venue.
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`Plaintiff AGIS Software Development LLC (“AGIS”) opposes this motion because it plans
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`to file objections to the Report and Recommendation, but has not provided an explanation for why
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`a stay would be inappropriate or improper while its objections are being considered.
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`On November 10, 2021, Magistrate Judge Payne issued a Report and Recommendation
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`finding venue improper against Lyft in this case and recommending granting Lyft’s Motion to
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`Dismiss for Improper Venue (Dkt. 30). Dkt. 212 at 12. In its Report and Recommendation, the
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`Court rejected all of AGIS’s bases for venue in this District, finding that AGIS’s arguments “either
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`fail as a matter of law under Cray or lack factual support in the record” and concluded that venue
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`was improper over Lyft in this District. Id. at 13.
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`If the Court adopts the Report and Recommendation and grants Lyft’s Motion to Dismiss,
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`it will dispose of this case in its entirety. Accordingly, Lyft submits that it would be most efficient
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`to await the Court’s order on Lyft’s Motion to Dismiss without expending the resources necessary
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`to meet the upcoming deadlines in this case. Over the next six weeks, for example, the parties are
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`due to engage in briefing related to Lyft’s Motion to Compel Document Production, Written
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`Discovery, and Depositions (Dkt. 199), AGIS’s Motion to Compel Lyft to Provide Discovery (Dkt.
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`Case 2:21-cv-00072-JRG-RSP Document 217 Filed 11/15/21 Page 3 of 6 PageID #: 7562
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`201), Lyft’s Motion to Strike Plaintiff’s First Amended Disclosure of Asserted Claims and
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`Infringement Contentions (Dkt. 191). Additionally, the parties are also due to complete expert
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`discovery on December 8 and file dispositive motions and motions to strike expert testimony by
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`December 13. See Dkt. 170 at 3-4. Should the Court defer any ruling until after the new year, the
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`burden and expense on the parties is further compounded. Specifically, under the current schedule,
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`the parties are to complete briefing on dispositive motions, file any motions in limine and serve
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`pretrial disclosures, objections to pretrial disclosures, and rebuttal pretrial disclosures all by mid-
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`January 2022. See Dkt. 170 at 2-3. As such, Lyft seeks the requested stay to preserve resources
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`and avoid the burden and expense of litigating this case and meeting the aforementioned deadlines
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`while awaiting the Court’s decision on the Report and Recommendation. The requested stay will
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`promote efficiency and reduce the burden on the parties and the Court.
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`Lyft has also recently learned of numerous discovery deficiencies in both AGIS’s
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`document production and interrogatory responses that would not need to be immediately remedied
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`if a stay of the case was granted. For example, an AGIS employee recently confirmed the existence
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`of product manuals and testing materials for products AGIS claims embody the asserted patents
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`that were not produced during the discovery period. In addition, despite assurances from counsel
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`on the final day of discovery that AGIS’s book of corporate meeting minutes would be produced,
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`AGIS only produced narrowly curated excerpts from the minute book in the hours before discovery
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`closed. As with AGIS’s deficient document production, it has also become recently apparent that
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`AGIS’s interrogatory responses are deficient from recent testimony from AGIS’s employees. For
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`example, in its interrogatory responses, AGIS identifies only companies it has sued for
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`infringement as competitors, while testimony from AGIS’s employees directly contradicts this
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`position. In addition, AGIS does not identify any product delivery since 2018 in its interrogatory
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`Case 2:21-cv-00072-JRG-RSP Document 217 Filed 11/15/21 Page 4 of 6 PageID #: 7563
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`responses despite testimony and other evidence to the contrary. In addition to AGIS’s garden-
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`variety discovery failures, it appears AGIS is also attempting to muddy the corporate distinction
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`between AGIS, Inc. and AGIS Software Development LLC to leverage benefits from AGIS, Inc.
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`when helpful while simultaneously using its corporate structure to try to avoid discovery.
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`While the deficiencies identified in AGIS’s discovery responses are numerous and
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`growing, entering a stay while the Court considers the dispositive Report and Recommendation
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`avoids the need to address these concerns with yet another motion to compel information and
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`documents that should have been provided by AGIS months ago along with relief from the current
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`schedule while AGIS provides the missing information. If the Court adopts the Report and
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`Recommendation and dismisses the case, these discovery deficiencies would be rendered moot.
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`The Court routinely grants motions to stay under circumstances similar to those presented
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`here. See, e.g., Cellular Commc’ns Equip. LLC v. AT&T Inc., No. 2:15-cv-00576-RWS-RSP,
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`Order at 1, ECF 547 (E.D. Tex. July 4, 2017) (ordering case stayed sua sponte pending court’s
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`adoption of magistrate judge’s dispositive report and recommendation over plaintiff’s objection);
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`Allergan Sales, LLC v. Teva Pharm. USA, Inc., No. 2:15-cv-01471-JRG-RSP, Order at 1, ECF 259
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`(E.D. Tex. Oct. 3, 2017) (ordering sua sponte stay pending adoption of pending report and
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`recommendation); Cave Consulting Grp., Inc. v. Health Care Serv. Corp., 6:17-cv-00344-RWS-
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`JDL, Order at 2, ECF 49 (E.D. Tex. Jan. 18, 2018) (granting opposed motion to stay deadlines
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`pending court’s adoption of dispositive report and recommendation); Honeywell Int’l Inc. v. Acer
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`Am. Corp., No. 6:07-cv-00125-LED-JDL, Order at 2, ECF 242 (E.D. Tex. May 26, 2009) (same).
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`This request is not being sought solely for the purpose of delay, but rather to facilitate the
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`fair, efficient, and effective use of the parties’ and the Court’s resources.
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`Case 2:21-cv-00072-JRG-RSP Document 217 Filed 11/15/21 Page 5 of 6 PageID #: 7564
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`Dated: November 15, 2021
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`By:
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`/s/ Bethany R. Salpietra
`Bethany R. Salpietra
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`Jeremy Taylor
`Arya Moshiri (Pro Hac Vice)
`Baker Botts L.L.P.
`jeremy.taylor@bakerbotts.com
`arya.moshiri@bakerbotts.com
`101 California St., Suite 3600
`San Francisco, CA 94111
`Telephone: (415) 291-6200
`Facsimile: (415) 291-6300
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`Danny David
`Baker Botts L.L.P.
`danny.david@bakerbotts.com
`910 Louisiana Street
`Houston, TX 77002
`Telephone: (713) 229-1234
`Facsimile: (713) 229-1522
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`Kurt Pankratz
`Bethany R. Salpietra
`Megan LaDriere White
`Baker Botts L.L.P.
`kurt.pankratz@bakerbotts.com
`bethany.salpietra@bakerbotts.com
`megan.ladriere@bakerbotts.com
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: (214) 953-6500
`Facsimile: (214) 953-6503
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`Brianna Potter (Pro Hac Vice)
`Baker Botts L.L.P.
`brianna.potter@bakerbotts.com
`1001 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 739-7556
`Facsimile: (650) 739-7656
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`Deron R. Dacus
`The Dacus Firm, P.C.
`ddacus@dacusfirm.com
`821 ESE Loop 323, Suite 430
`Tyler, Texas 75701
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`Case 2:21-cv-00072-JRG-RSP Document 217 Filed 11/15/21 Page 6 of 6 PageID #: 7565
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`Telephone: (903) 705-1117
`Facsimile: (903) 581-2543
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`Attorneys for Defendant Lyft, Inc.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have consented
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`to electronic services are being served with a copy of this document via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3) on this the November 15, 2021.
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`/s/ Bethany R. Salpietra
`Bethany R. Salpietra
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rule CV-7(h) and (i), I certify that on November 15, 2021, counsel for
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`Lyft conferred with Counsel for Plaintiff, who stated Plaintiff opposes the foregoing motion.
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`/s/ Bethany R. Salpietra
`Bethany R. Salpietra
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