Case 2:21-cv-00072-JRG-RSP Document 233 Filed 11/22/21 Page 1 of 6 PageID #: 7857
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
`Case No. 2:21-cv-00072-JRG
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`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE IN
`OPPOSITION TO DEFENDANT LYFT, INC.’S OPPOSED MOTION (DKT. 217)
`TO STAY PENDING ADOPTION OF THE DISPOSITIVE
`REPORT AND RECOMMENDATION (DKT. 212)
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`Case No. 2:21-cv-00024-JRG
`(MEMBER CASE)
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`LYFT, INC.,
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`Plaintiff,
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`v.
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`Defendant.
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`Case 2:21-cv-00072-JRG-RSP Document 233 Filed 11/22/21 Page 2 of 6 PageID #: 7858
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”), by and through its
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`undersigned counsel, hereby submits this response in opposition to Defendant Lyft, Inc.’s
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`(“Defendant” or “Lyft”) Opposed Motion (Dkt. 217) to Stay Pending Adoption of the Dispositive
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`Report and Recommendation (Dkt. 212) (the “Motion”).
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`AGIS is entitled to file its objections to Magistrate Judge Payne’s Report and
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`Recommendation regarding Lyft’s Motion to Dismiss. Dkt. 217 at 1. AGIS’s objections are due
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`to be filed by November 24, 2021 and AGIS intends to timely file its Objections. Lyft seeks a stay
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`of the case pending Judge Gilstrap’s decision whether to adopt the Magistrate Judge’s Report and
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`Recommendation on the Motion to Dismiss. Dkt. 217 at 1-2.
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`There is no compelling reason to stay this case. Under the Court’s Docket Control Order,
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`fact discovery is now complete. In addition, on November 8, 2021, the parties served their opening
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`expert reports on infringement, damages, and patent invalidity. The expert rebuttal reports are due
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`to be exchanged on November 29, 2021. Dkt. 170. Further, AGIS’s opposition briefs to Lyft’s
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`motion to stay, motion to strike, and motion to compel have already been filed. See Dkts. 224,
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`225, and 226.
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`The granting of a stay of the case at the present time would greatly prejudice AGIS. The
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`case is scheduled for trial on March 7, 2022, and a stay would effectively remove the case from
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`the trial calendar. To permit the case to continue forward to allow the District Judge to consider
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`AGIS’ Objections to the Report and Recommendation on the Motion to Dismiss will preserve the
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`trial date and the status quo pending a ruling from the Court. While Lyft’s attorneys argue in the
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`stay motion that there are purported additional discovery deficiencies, not the subject of any timely
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`filed motion to compel, which would need to be addressed if the case continues, these arguments
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`are nothing more than an attempt to create post-fact discovery controversies that do not genuinely
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`Case 2:21-cv-00072-JRG-RSP Document 233 Filed 11/22/21 Page 3 of 6 PageID #: 7859
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`exist. AGIS has diligently sought to provide all relevant discovery. These purported discovery
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`deficiencies could have been raised before the close of fact discovery. AGIS has already served
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`its opening infringement report and its damages expert report and is preparing its rebuttal expert
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`report. Defendants Uber and Lyft have collectively served expert reports regarding invalidity.
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`Should the Court decline to adopt the Report and Recommendations, a stay of the case “may
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`needlessly lengthen the litigation.” Health Choice Grp., LLC v. Bayer Corp., No. 5:17cv126-
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`RWS-CMC, 2018 WL 5728520, at *2 (E.D. Tex. Aug. 8, 2018) (denying motion to stay).
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`In addition, Malcolm K. Beyer, Jr., the CEO of AGIS, and a named inventor of the Asserted
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`Patents, is 83 years old and given his advanced age, a stay would greatly prejudice his ability to
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`timely assert his patent rights. See, e.g. Network-1 Sec. Sols., Inc. v. Alcatel-Lucent USA Inc., No.
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`6:11cv492, 2015 WL 11439060, at *5 (E.D. Tex. Jan. 5, 2015) (“This Court has repeatedly
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`recognized a plaintiff’s interest in timely enforcement of a patent.”).
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`The cases relied upon by Lyft are distinguishable. In Cellular Comm’ns Equip. LLC v.
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`AT&T Inc., No. 2;15-cv-00576-RWS-RSP, Dkt. 547 (E.D. Tex. July 4, 2017), the Court sua sponte
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`ordered a stay because of the Court’s grant of summary judgment invalidating one of the patents-
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`in-suit and the pretrial conference, which was scheduled for one week later. In Allergan Sales,
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`LLC v. Teva Pharms. USA, Inc., No. 2:15-cv-01471-JRG-RSP, Dkt. 259 at 1 (E.D. Tex. Oct. 3,
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`2017), the Court sua sponte stayed the case in light of the Report and Recommendation
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`recommending the grant of summary judgment, because trial was scheduled to begin twenty days
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`after ordering the stay. Similarly, in Honeywell Int’l Inc. v. Acer Am. Corp., No. 6:07-cv-125, Dkt.
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`242 (E.D. Tex. May 26, 2009), the Court granted plaintiff’s motion to stay deadlines pending the
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`Court’s adoption of a report and recommendation on motions for summary judgment of non-
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`infringement where parties had already entered pretrial orders and proposed jury instructions.
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`Case 2:21-cv-00072-JRG-RSP Document 233 Filed 11/22/21 Page 4 of 6 PageID #: 7860
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`Lastly, in Cave Consulting Grp., Inc. v. Health Care Serv. Corp., No. 6:17-cv-00344-RWS, Dkt.
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`49 (E.D. Tex. Jan. 18, 2018), the Court granted defendant’s motion for a stay pending the Court’s
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`decision regarding adoption of the report and recommendation on defendant’s motion to dismiss
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`for failure to state a claim, based on the “approaching discovery and hearing deadlines.” In
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`contrast, the pretrial conference in this case is not until February 2, 2022. See Dkt. 170. AGIS is
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`preparing to file its objections to the Report and Recommendations in compliance with the Local
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`Rules and the deadline set forth in the Report and Recommendation. See Dkt. 212 at 14.
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`Accordingly, AGIS respectfully requests that Lyft’s request to stay this case be denied.
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`I.
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`CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court deny Defendant’s
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`Motion (Dkt. 217) in its entirety.
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`Dated: November 22, 2021
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`3
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` Respectfully submitted,
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`/s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@ fabricantllp.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@ fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`Samuel F. Baxter
`Texas State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
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`Case 2:21-cv-00072-JRG-RSP Document 233 Filed 11/22/21 Page 5 of 6 PageID #: 7861
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`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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`Case 2:21-cv-00072-JRG-RSP Document 233 Filed 11/22/21 Page 6 of 6 PageID #: 7862
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on November 22, 2021, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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