Case 2:21-cv-00072-JRG-RSP Document 241 Filed 12/03/21 Page 1 of 6 PageID #: 7921
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`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`Case No. 2:21-cv-00072-JRG
`§
`(LEAD CASE)
`§
`
`§
`JURY TRIAL DEMANDED
`§
`§
`
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSED MOTION FOR
`ENTRY OF SIXTH AMENDED DOCKET CONTROL ORDER
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`UBER TECHNOLOGIES, INC., d/b/a
`UBER,
`
`
`
`
`
`Case No. 2:21-cv-00026-JRG
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`
`Plaintiff AGIS Software Development LLC (“AGIS”) files this Opposed Motion for
`
`Entry Of Sixth Amended Docket Control Order (the “Motion”) and show the Court as follows.
`
`On November 8, 2021, AGIS served the opening expert reports of Joseph C.
`
`McAlexander, III regarding infringement and James Bergman regarding damages to Defendant
`
`Uber Technologies, Inc. (“Uber”).
`
`Uber waited until November 29, 2021 to request these experts’ availability for deposition.
`
`AGIS diligently and promptly obtained their availability. Two days after Uber first requested
`
`expert availability, AGIS confirmed Mr. Bergman’s availability for December 9, 2021 at 8:00
`
`am Pacific Time.
`
`The next day, on December 3, AGIS informed Uber that Mr. McAlexander had numerous
`
`conflicts and that he was unavailable to sit for a deposition until December 20, 2021 and
`
`December 22, 2021. Attached as Exhibit 1 is a declaration from Mr. McAlexander stating his
`
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`Case No. 2:21-cv-00072-JRG
`§
`(LEAD CASE)
`§
`
`§
`JURY TRIAL DEMANDED
`§
`§
`
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSED MOTION FOR
`ENTRY OF SIXTH AMENDED DOCKET CONTROL ORDER
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`UBER TECHNOLOGIES, INC., d/b/a
`UBER,
`
`
`
`
`
`Case No. 2:21-cv-00026-JRG
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`
`Plaintiff AGIS Software Development LLC (“AGIS”) files this Opposed Motion for
`
`Entry Of Sixth Amended Docket Control Order (the “Motion”) and show the Court as follows.
`
`On November 8, 2021, AGIS served the opening expert reports of Joseph C.
`
`McAlexander, III regarding infringement and James Bergman regarding damages to Defendant
`
`Uber Technologies, Inc. (“Uber”).
`
`Uber waited until November 29, 2021 to request these experts’ availability for deposition.
`
`AGIS diligently and promptly obtained their availability. Two days after Uber first requested
`
`expert availability, AGIS confirmed Mr. Bergman’s availability for December 9, 2021 at 8:00
`
`am Pacific Time.
`
`The next day, on December 3, AGIS informed Uber that Mr. McAlexander had numerous
`
`conflicts and that he was unavailable to sit for a deposition until December 20, 2021 and
`
`December 22, 2021. Attached as Exhibit 1 is a declaration from Mr. McAlexander stating his
`
`
`
`Case 2:21-cv-00072-JRG-RSP Document 241 Filed 12/03/21 Page 2 of 6 PageID #: 7922
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`conflicts. At Uber’s request, AGIS also provided Uber with a draft proposal for an amended
`
`docket control order. Consistent with this submission, AGIS’s draft motion proposed extending
`
`the deadlines for dispositive motions until December 23, 2021 (giving Uber 3 days after the first
`
`deposition, presumably regarding infringement) and for responses to dispositive motions until
`
`January 10, 2022.
`
`Uber refused to accept Mr. McAlexander’s deposition availability and opposes this
`
`motion citing prejudice.
`
`Uber offered two of its four experts, Dr. Neil Siegel and Dr. Aviel Rubin, for deposition
`
`on December 7, 2021 and December 8, 2021, respectively. AGIS promptly requested alternative
`
`dates for these witnesses due to prior-scheduled professional conflicts. AGIS proposed taking
`
`Dr. Rubin’s deposition on December 6, 2021. Uber informed AGIS that Dr. Rubin was
`
`unavailable on December 6 and that it would offer Dr. Siegel and Dr. Rubin during the week of
`
`December 13, 2021.
`
`In direct response to AGIS offering Mr. McAlexander on December 20, 2021, Uber
`
`withdrew any and all availability for Dr. Siegel and Dr. Rubin and stated that it would not
`
`provide their availability until the Court decided this motion. Uber is thus, without reason,
`
`withholding Dr. Siegel’s and Dr. Rubin’s availability during the week of December 13, 2021,
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`despite its prior representation to AGIS to make them available.
`
`AGIS requests a short extension of certain deadlines in the Fifth Amended Docket
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`Control Order (Dkt. 170). Good cause exists due to prior commitments and scheduling conflicts
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`of AGIS’s technical expert, Mr. McAlexander, and requires additional time to complete expert
`
`discovery. AGIS also requests a short extension of deadlines for dispositive motion briefing to
`
`
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`Case 2:21-cv-00072-JRG-RSP Document 241 Filed 12/03/21 Page 3 of 6 PageID #: 7923
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`account for the extension of expert discovery. Attached as Exhibit 1 to this motion is a
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`declaration from Mr. McAlexander regarding his conflicts.
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`Uber opposes this motion and has indicated its intention to file a response on Tuesday,
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`December 7, 2021.
`
`Accordingly, AGIS respectfully requests that the Court grant the Motion to amend its
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`Fifth Amended Docket Control Order as set forth below and in the attached proposed order.
`
`Current Date
`December 30, 2021
`
`Proposed Date
`January 10, 2022
`
`December 13, 2021 December 23, 2021
`
`December 13, 2021 December 23, 2021
`
`Event
`*Response to Dispositive Motions (including
`Daubert Motions). Responses to dispositive
`motions that were filed prior to the
`dispositive motion deadline, including
`Daubert Motions, shall be due in accordance
`with Local Rule CV7(e), not to exceed the
`deadline as set forth in this Docket Control
`Order.1 Motions for Summary Judgment shall
`comply with Local Rule CV-56.
`
`*File Motions to Strike Expert Testimony
`(including Daubert Motions)
`No motion to strike expert testimony
`(including a Daubert motion) may be filed
`after this date without leave of the Court.
`
`*File Dispositive Motions
`No dispositive motion may be filed after this
`date without leave of the Court.
`Motions shall comply with Local Rule CV-56
`and Local Rule CV-7. Motions to extend
`page limits will only be granted in
`exceptional circumstances. Exceptional
`circumstances require more than agreement
`among the parties.
`
`
`
`1 The Parties are directed to Local Rule CV-7(d), which provides in part that “[a] party’s failure
`to oppose a motion in the manner prescribed herein creates a presumption that the party does not
`controvert the facts set out by movant and has no evidence to offer in opposition to the motion.”
`If the deadline under Local Rule CV-7(e) exceeds the deadline for Response to Dispositive
`Motions, the deadline for Response to Dispositive Motions controls.
`
`
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`Case 2:21-cv-00072-JRG-RSP Document 241 Filed 12/03/21 Page 4 of 6 PageID #: 7924
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`December 8, 2021
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`
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`December 22, 2021 Deadline to Complete Expert Discovery
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`
`Dated: December 3, 2021
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
` /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 Road, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`ATTORNEYS FOR PLAINTIFF,
`AGIS SOFTWARE DEVELOPMENT LLC
`
`
`
`
`
`Case 2:21-cv-00072-JRG-RSP Document 241 Filed 12/03/21 Page 5 of 6 PageID #: 7925
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`CERTIFICATE OF CONFERENCE
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`The undersigned hereby certifies that Plaintiff’s counsel, Enrique Iturralde and Jennifer
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`Truelove, have met and conferred with counsel for Defendants, Christine Ranney and Melissa
`
`Smith, and Defendants oppose the instant motion as prejudicing Defendants. Accordingly, the
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`parties are at an impasse and there remains open issues for the Court to resolve.
`
`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
`
`
`
`
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`Case 2:21-cv-00072-JRG-RSP Document 241 Filed 12/03/21 Page 6 of 6 PageID #: 7926
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on December 3, 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).
`
`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
`
`
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