Case 2:21-cv-00072-JRG-RSP Document 320 Filed 01/14/22 Page 1 of 21 PageID #: 21007
`
`
`
`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
`
`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
`
`§§
`
`§
`§
`§
`
`§§§
`
`§§
`
`§
`§
`§
`§
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`T-MOBILE USA, INC., and T-MOBILE
`US, INC.
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`LYFT, INC.
`
`DEFENDANT LYFT, INC.’S RESPONSE TO PLAINTIFF AGIS SOFTWARE
`DEVELOPMENT LLC’S MOTION FOR RECONSIDERATION AND OBJECTIONS
`TO THE ORDER RECOMMENDING GRANT OF
`LYFT, INC.’S MOTION TO DISMISS FOR IMPROPER VENUE (DKT. 212)
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 320 Filed 01/14/22 Page 2 of 21 PageID #: 21008
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`
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
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`III.
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`C.
`
`B.
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`INTRODUCTION .............................................................................................................. 1
`ARGUMENT ...................................................................................................................... 2
`A.
`The Hertz Agreement Does Not Establish that Lyft Had a Regular and
`Established Place of Business in this District When This Case was Filed. ............ 2
`AGIS’s Allegations Regarding Lyft’s Partnerships are Insufficient to Support
`Venue in this District. ............................................................................................. 5
`Dismissal is Warranted Because the Record Does Not Establish the “Most
`Appropriate Other Venue” ...................................................................................... 7
`a.
`Relative Ease of Access to Sources of Proof ....................................................... 10
`b.
`Availability of Compulsory Process to Secure the Attendance of Witnesses ...... 11
`c.
`Cost of Willing Witnesses ................................................................................... 12
`d.
`Substantial Local Interest ..................................................................................... 13
`e.
`Court Congestion ................................................................................................. 14
`CONCLUSION ................................................................................................................. 14
`
`i
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`

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`
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`AGIS Software Dev. LLC v. Apple, Inc.,
`No. 2:17-CV-00516-JRG, 2018 U.S. Dist. LEXIS 94947 (E.D. Tex. June 6, 2018) ..............11
`
`Ikorongo Texas LLC et al. v. Lyft, Inc.,
`6-20-cv-00258 (W.D. Tex. July 7, 2021)...................................................................................8
`
`Ikorongo Texas LLC et al. v. Lyft, Inc.,
`6-20-cv-00258 (W.D. Tex. Sep. 1, 2021) ..................................................................................8
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010)................................................................................................13
`
`In re Adobe,
`823 F. App'x (Fed. Cir. 2020) ..................................................................................................14
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020)....................................................................................10, 13, 14
`
`In re Cray,
`871 F.3d 1355 (Fed. Cir. 2017)......................................................................................2, 3, 5, 7
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)..........................................................................................10, 11
`
`In re Samsung Elecs. Co.,
`Nos. 2021-139, 2021 WL 2672136 (Fed. Cir. June 30, 2021) ......................................8, 13, 14
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ...................................................................................................11
`
`In re ZTE (USA) Inc.,
`890 F.3d 1008, 1015 (Fed. Cir. 2018)........................................................................................7
`
`Pers. Audio, LLC v. Google, Inc.,
`280 F. Supp. 3d 922 (E.D. Tex. 2017) .......................................................................................4
`
`Quartz Auto Techs. LLC v. Lyft, Inc.,
`No. 1:20-CV-00719-ADA, 2021 WL 1177886 (W.D. Tex. Mar. 29, 2021) .............................8
`
`STATUTES
`
`28 U.S.C. § 1400(b) .....................................................................................................................2, 4
`
`ii
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`

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`
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`OTHER AUTHORITIES
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`Fed. R. Civ. P. 12(b)(6)....................................................................................................................9
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`Fed. R. Civ. P. 12(c) ........................................................................................................................9
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`Fed. R. Civ. P. 45(c)(1) ..................................................................................................................11
`
`iii
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`

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`
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`I.
`
`INTRODUCTION
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`AGIS Software Development LLC’s (“AGIS”) request for reconsideration and objections
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`(“Motion”) rehash the same arguments previously considered by Judge Payne in his well-reasoned
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`Report and Recommendation (Dkt. 212) (hereinafter, “Report and Recommendation”). AGIS
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`makes three arguments, none of which warrant deviation from Judge Payne’s recommendation to
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`dismiss this case.
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`First, contrary to sworn testimony and the evidence already considered by Judge Payne,
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`AGIS incorrectly argues that the Hertz agreement “establishes that Lyft had a regular and
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`established place of business in the District at the time the Complaint was filed.” Dkt. 258 at 1. It
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`does not. And AGIS has not, and cannot, provide any evidence contradicting sworn testimony that
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`no such place existed at any time around or after AGIS filed its Complaint. There is little doubt
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`that if Lyft operated an Express Drive location in this District, AGIS would have provided photos,
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`testimony, and other evidence confirming it. AGIS provided no such evidence because it cannot;
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`Lyft does not have a regular and established place of business in this District.
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`Second, based on attorney argument alone, AGIS incorrectly argues that payments to third-
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`party airports, cities, jurisdictions, or municipalities should support a finding that Lyft has a regular
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`and established place of business in the District. See id. at 1 & 8-10. Such arguments are legally
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`flawed, directly contradict Federal Circuit precedent, and are not relevant to the venue inquiry—
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`namely, whether Lyft operates a regular and established place of business at third-party sites.
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`Lastly, AGIS argues that the Court should transfer this case to a district previously found
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`inappropriate for Lyft—rather than dismiss—based on the record Judge Payne already found
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`inadequate to support transfer. Consistent with Judge Payne’s Report and Recommendation, there
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`is insufficient evidence to support transfer. Furthermore, AGIS failed to rebut Lyft’s evidence that
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`transfer would be inappropriate as confirmed by previous W.D. Tex. court orders finding the
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`1
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`

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`
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`Western District of Texas inappropriate for patent litigation involving the same accused Lyft
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`applications.
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`AGIS’s objections to Judge Payne’s Report and Recommendation attempts to mislead this
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`Court by repeating arguments confirmed to be false, misstating testimony of Lyft’s witnesses, and,
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`in one instance, even baldly and inaccurately suggesting that one of Lyft’s witnesses committed
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`perjury by selectively quoting his testimony. These actions are unacceptable in any court and
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`illustrate the lengths AGIS will go to improperly pursue litigation against Lyft in this District. As
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`found by Judge Payne, Lyft does not, and has not, maintained a regular and established place of
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`business in this District1 at any time material to the venue analysis, and AGIS cannot overcome
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`this fact by false statements and attempts to smear Lyft’s witness.
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`II.
`
`ARGUMENT
`
`A. The Hertz Agreement Does Not Establish that Lyft Had a Regular and Established
`Place of Business in this District When This Case was Filed.
`
`AGIS’s primary basis for requesting reconsideration of Judge Payne’s Report and
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`Recommendation is that “Lyft maintains a regular and established physical place of business with
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`its Lyft Express Drive Location at 928 West Spring Creek Parkway, Plano, Texas 75023.” Dkt.
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`258 at 3. As Lyft has confirmed numerous times, including through a sworn declaration and in-
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`person testimony, Lyft does not and has not maintained a regular and established place of business
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`at this location in Plano since August 2019, a year and a half before AGIS filed this case against
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`Lyft.2 See, e.g., Dkt. 30 at 5-7; Ex. 1 at 42:11-16. AGIS attempts to undermine the undisputed
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`1 Lyft does not dispute that customers can use its applications in this District. See Dkt. 258 at 2-
`3. But, merely offering a product in a district is insufficient to confer venue over a defendant under
`28 U.S.C. § 1400(b). See In re Cray, 871 F.3d 1355, 1360 (Fed. Cir. 2017).
`2 Even if the alleged Plano Express Drive location existed, Lyft disputes that it could serve as a
`basis for venue in this District because such location is not a place “of Lyft.” See Dkt. 30 at 5-7;
`In re Cray, 871 F.3d 1355, 1362 (Fed. Cir. 2017) (explaining that a location be one “of the
`defendant” for a finding of proper venue to be made). Judge Payne’s Report and Recommendation
`
`2
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`

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`evidence on this issue by pointing to an agreement between Lyft and Hertz that allows Lyft to use
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`certain Hertz locations throughout the United States, but nothing in that agreement indicates that
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`Lyft uses any Hertz locations in this District and Lyft’s Regional Director for Texas and Oklahoma
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`confirmed under oath that no such locations exist in this District. See Dkt. 258 at 3-8; Dkt.258-2
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`through Dkt.258-6; and Ex. 1 at 43:6-9. This Court should unequivocally reject AGIS’s
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`arguments.
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`AGIS erroneously concludes that Lyft maintains an Express Drive site at the Pep Boys
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`Plano based solely on the fact that the Hertz agreement permits Lyft to use Hertz’s space in certain
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`territories on and after January 29, 2021. See Dkt. 258 at 6 (“The Hertz Agreement demonstrate
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`[sic], on their face, that Lyft’s ‘Express Drive’ rental business for Lyft vehicles was operating in
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`the District well after the Complaint was filed in this case.”). As Judge Payne recognized during
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`the evidentiary hearing on Lyft’s Motion, however, being allowed to do something and actually
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`doing something are two very different things, and establishing venue over a defendant requires
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`the latter. See Ex. 1 at 71:14-16; Cray, 871 F.3d at 1360 (explaining that “a physical place in the
`
`district” is a requirement of the patent venue statute). Thus, even if the alleged Plano Express
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`Drive location operated pursuant to the Hertz agreement at some time in the past (i.e., before
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`August 2019), AGIS failed to introduce any evidence controverting Lyft’s direct evidence that
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`such location was closed at all times material to the venue analysis. Judge Payne recognized this
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`in his Report and Recommendation stating that “Plano is not among the ‘certain territories’”
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`identified as being a location governed by the Hertz Agreement and finding that “AGIS has not
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`explains that a ruling on this issue was unnecessary since this location was closed at the time this
`case was filed. Dkt. 212 at 10 (“Because the Court finds the Express Drive Plano location was
`closed at the time of filing, the Court does not need to address Lyft’s alternate argument as to why
`the Express Drive Plano cannot be a place of business of Lyft.”).
`
`3
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`

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`put forth any evidence that the Hertz Agreement applied to the Express Drive Plano location.”3
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`Dkt. 212 at 9.
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`Despite months of discovery, AGIS has failed to identify any evidence to support venue in
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`this District. Instead of relying on the evidence obtained, however, AGIS ignores it and
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`reprehensibly suggests that Lyft’s witness, Mr. Loosen, provided false testimony. Dkt. 258 at 7
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`(“While Lyft’s witness testified that the ‘relationship [with Hertz] ended summer of 2020’ the
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`amendments to the Hertz Agreement produced by Lyft establish that this testimony was false or
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`incorrect . . .”). AGIS had full opportunity to cross examine Mr. Loosen on two separate
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`occasions—through deposition and on the stand—and introduce any alleged evidence to support
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`its specious venue theory, but it did not (and could not) because no such evidence exists. Left
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`without evidence to support its hollow arguments, AGIS now resorts to misrepresenting Mr.
`
`Loosen’s testimony. Contrary to what AGIS would have this Court believe, Mr. Loosen did not
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`testify that Lyft’s contractual relationship with Hertz ended in 2020. The entire quote—which
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`AGIS selectively excerpts—is: “
`
`
`
`, and that relationship ended summer of 2020.” Ex. 2 at 23:25-24:2. As Mr.
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`Loosen explained numerous times during his deposition,
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`. See, e.g., id. at 20:20-23 (“
`
`
`
`
`
`”);
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`3 In the alternative, AGIS also wrongly asserts that Lyft operated a regular and established place
`of business in the Eastern District of Texas “at all material times” even if no Express Drive location
`existed in the District when the lawsuit was filed. Dkt.258 at 8. In support of this assertion, AGIS
`relies on a Seventh Circuit decision. As noted by Judge Payne, however, AGIS’s reliance on this
`authority is futile because this district follows a different standard. See Pers. Audio, LLC v.
`Google, Inc., 280 F. Supp. 3d 922, 930-31 (E.D. Tex. 2017) (holding that “venue is determined
`under § 1400(b) by the facts and situation as of the date suit is filed.”); Dkt. 212 at n. 1 (“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.”).
`
`4
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`

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`
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`30:13-14 (“
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`”); 35:16-17 (“
`
`
`
`”). When
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`considered in its appropriate context, it is clear that Mr. Loosen’s testimony is not “belied by Lyft’s
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`own contemporaneous documentary evidence” as AGIS would have this Court believe; it is
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`entirely consistent with the evidence showing that Lyft does not operate a regular and established
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`place of business in this District as determined by Judge Payne. See Dkt. 258 at 8. AGIS’s
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`reprehensible allegation of impropriety is no more than a desperate attempt to maintain venue in
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`this District.
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`B. AGIS’s Allegations Regarding Lyft’s Partnerships are Insufficient to Support Venue
`in this District.
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`AGIS also alleges that Lyft maintains “numerous regular and established places in this
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`District through its partnerships with various airports, cities, jurisdictions, and municipalities,” and
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`specifically identifies the Tyler Pounds Regional Airport, Flower Mound Lyft Zone, Highland
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`Village Lyft Zone, and the University of North Texas Zone (collectively, “Identified Pick-Up
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`Locations”) as allegedly providing bases for venue. Dkt. 258 at 8-9. But the Court already
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`considered these arguments and rejected them for failing to meet the Cray criteria. Dkt. 212 at 11-
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`13; see also Cray, 871 F.3d at 1360. In rejecting each Identified Pick-Up Location as a basis for
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`venue, the Court found (1) the Tyler Pounds Regional Airport (hereinafter “Tyler Pounds”) was
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`not a place “of Lyft,” and AGIS failed to present evidence showing that Lyft regularly transacts
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`business there; and (2) the Flower Mound Lyft Zone, Highland Village Lyft Zone, and the
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`University of North Texas Zone (collectively, the “Identified Lyft Zones”) did not constitute a
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`“place” under the patent-venue statute, and AGIS failed to present evidence showing that the
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`Identified Lyft Zones were a place “of Lyft.” See Dkt. 212 at 11-13.
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`5
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`21016
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`AGIS repackages its arguments concerning these third-party locations already rejected by
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`Judge Payne by arguing—for the first time—that these locations are a place of Lyft because Lyft
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`“compensates or pays ‘leases’ to various airports, cities, jurisdictions, and municipalities in order
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`to provide Lyft services in this District.” See Dkt. 258 at 9. As an initial matter, AGIS ignores
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`that not all airports, cities, jurisdictions, and municipalities impose such fees and there is no
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`evidence that such payments occur in this District. The testimony of Mr. Tran, Lyft’s Senior
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`Director of Financial Analytics, on which AGIS relies, does not establish that Lyft has paid any
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`fees to airports, cities, jurisdictions, or municipalities in connection with rides made to or from
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`Tyler Pounds or to or from the “Identified Lyft Zones” as suggested by AGIS. Instead, Mr. Tran’s
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`testimony reflects, that, in fact, not all cities, jurisdictions, or municipalities impose per-ride fees.
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`Ex. 3 at 80:1-15. Similarly, not all airports impose per-ride fees. Further, the mere fact that Lyft
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`may pay fees (or has paid fees) on behalf of its customers to third parties outside of this District
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`cannot support venue in this District. And, despite having ample opportunity4 to confirm its
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`unfounded allegations that Lyft made payments to airports, cities, jurisdictions, and municipalities
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`in connection with rides to or from the Identified Pick-Up Zones, AGIS did not do so.
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`Notwithstanding the foregoing, however, Lyft has confirmed that it has not made any of the alleged
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`per-ride fee payments to Tyler Pounds, Denton County, Flower Mound, Highland Village,
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`Lewisville, or Denton.
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`AGIS also ignores that the fees that AGIS references are not payment obligations of Lyft;
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`5 And, even if AGIS had presented evidence showing Lyft
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`4 AGIS deposed six Lyft witnesses and served fifteen interrogatories during the five months of fact
`discovery.
`5 As explained by Mr. Jeff Tran, these fees are per-ride fees imposed by certain airports, cities,
`jurisdictions, and municipalities that are collected from riders and passed through by Lyft. See Ex.
`3 at 106:2-4 (“
`
`”); 106:18-22 (testifying that
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`6
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`

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`
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`made payments to third-party airports, cities, jurisdictions, and municipalities in this District
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`(which AGIS has not done), such a showing is insufficient to establish that Lyft “leased” any
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`purported space. See In re ZTE (USA) Inc., 890 F.3d 1008, 1015 (Fed. Cir. 2018) (explaining that
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`a district court must give reasoned consideration to all relevant “of the defendant” factors set forth
`
`in Cray6 when determining whether an alleged place is a place of the defendant). The Identified
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`Pick-Up Locations are not “places of Lyft” because Lyft lacks sufficient possession or control over
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`these areas. See id.; see also Dkt. 212 at 13 (“[T]he 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.”).
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`Moreover, AGIS fails to overcome the other issues identified by Judge Payne in his Report
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`and Recommendation. Specifically, AGIS did not provide any evidence supporting its contention
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`that Lyft has a regular and established place of business at Tyler Pounds; or within the “Identified
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`Lyft Zones” under the patent-venue statute, as the zones are merely digital boundaries for pickup
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`and not physical locations possessed by Lyft. See Dkt. 212 at 12-13; Cray, 871 F.3d at 1360.
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`C. Dismissal is Warranted Because the Record Does Not Establish the “Most
`Appropriate Other Venue”
`
`AGIS’s arguments regarding the appropriateness of the Western District of Texas (WDTX)
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`as a transferee venue are as unavailing as its arguments regarding venue in this District and fail to
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`“
`
`”).
`6 Cray, 871 F.3d at 1363-64 (“Relevant considerations include whether the defendant owns or
`leases the place, or exercises other attributes of possession or control over the place . . . Another
`consideration might be whether the defendant conditioned employment on an employee’s
`continued residence in the district or the storing of materials at a place in the district . . . a
`defendant’s representations that it has a place of business in the district are relevant to the inquiry
`. . . A further consideration for this requirement might be the nature and activity of the alleged
`place of business of the defendant in the district in comparison with that of other places of business
`of the defendant in other venues.”).
`
`
`
`7
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`

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`account for recent WDTX rulings finding venue in WDTX to be inappropriate for the same
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`accused Lyft applications. See Order Granting Defendant Lyft, Inc.’s Emergency Motion for
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`Reconsideration of this Court’s Order Denying Transfer (Dkt. No. 68), Or, In the Alternative, To
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`Stay Pending Appeal, Dkt. No. 93, Ikorongo Texas LLC et al. v. Lyft, Inc., 6-20-cv-00258 (W.D.
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`Tex. Sep. 1, 2021) (granting transfer in view of In re Samsung Elecs. Co., Nos. 2021-139, 2021
`
`WL 2672136 (Fed. Cir. June 30, 2021)); Quartz Auto Techs. LLC v. Lyft, Inc., No. 1:20-CV-00719-
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`ADA, 2021 WL 1177886, at *4 (W.D. Tex. Mar. 29, 2021).
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`As Lyft previously raised to this Court, recent decisions issued by WDTX support Lyft’s
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`contention that (1) the Northern District of California (NDCA) is more convenient than WDTX
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`for litigating patent infringement matters involving the same accused Lyft’s applications, and (2)
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`AGIS’s infringement allegations regarding U.S. Patent 10,341,838 (the “’838 Patent”) cannot
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`properly proceed in WDTX because the accused functionalities do not exist in the District. See
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`Dkt. 30 at 1-2 & 14-15; Dkt. 87 at 6; Dkt. 179; Ex. 1 at 9:2-14. On the first point, Judge Albright
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`granted transfer to NDCA in Ikorongo in view of the Federal Circuit’s Samsung decision, finding
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`the district court assigned “too little weight to the relative convenience of the Northern District of
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`California” given the “relevant events and circumstances giving rise to [the] infringement claims”
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`and the “identified sources of proof and likely witnesses” located in Northern California.
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`Samsung, 2021 WL 2672136, at *6; Defendant Lyft, Inc.’s Emergency Motion for Reconsideration
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`of this Court’s Order Denying Transfer (Dkt. No. 68), Or, In the Alternative, To Stay Pending
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`Appeal, Dkt. No. 88, Ikorongo Texas LLC et al. v. Lyft, Inc., 6-20-cv-00258 (W.D. Tex. July 7,
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`2021). Like the infringement allegations in Ikorongo, AGIS accuses Lyft’s applications and
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`related servers of infringement.
`
`8
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`

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`21019
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`Regarding the ’838 Patent, Judge Albright’s decision in Quartz Auto is informative. In
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`Quartz Auto, the plaintiff accused a server not located in the district, like AGIS’s allegations
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`concerning the ’838 Patent. As a result, the plaintiff was unable to assert that venue was proper,
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`and instead attempted to rely on principles of pendent venue, which Judge Albright rejected,
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`dismissing the patent from the case on the pleadings. See First Amended Complaint for Patent
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`Infringement and Demand for Jury Trial, Dkt. No. 44, Quartz Auto Techs. LLC v. Lyft, Inc., No.
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`1:20-CV-00719-ADA (W.D. Tex. Sep. 18, 2020); see also Defendant's Motion to Dismiss First
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`Amended Complaint Under Federal Rule of Civil Procedure 12(b)(6) and 12(c), Dkt. No. 46, No.
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`1:20-CV-00719-ADA (W.D. Tex. Oct. 9, 2020), at 16. The same result would likely occur for at
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`least the ’838 Patent if this case was transferred to WDTX.
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`AGIS disregards Lyft’s previous identification of the above-discussed authority and
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`instead submits arguments largely recycled from previous briefing and already considered by
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`Judge Payne (see Dkt. 258 at 11; Dkt. 64 at 21-26) when he concluded that the “record has not
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`been fully developed on the most appropriate other venue.” Dkt. 212 at 14. AGIS incorrectly
`
`argues that three of the private factors (i.e., relative ease of access to sources of proof, the
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`availability of compulsory process to secure the attendance of witnesses; and the cost of attendance
`
`for willing witnesses7) and two of the public factors (i.e., substantial local interest; and court
`
`congestion) favor transfer to WDTX (see Dkt. 258 at 10-14), but a proper § 1404 analysis confirms
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`that none of the factors identified by AGIS8 support transfer to WDTX.
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`7 AGIS appears to conflate the compulsory process and willing witnesses factors by collectively
`categorizing them as “the convenience of party and non-party witnesses.” See Dkt. 258 at 12.
`8 AGIS substantively analyzes only five of the eight § 1404 factors in its Motion and acknowledges
`the remaining factors are neutral. See Dkt. 258 at 10-14.
`
`9
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`

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`21020
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`a. Relative Ease of Access to Sources of Proof
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`AGIS incorrectly asserts that the sources of proof factor weighs in favor of transfer to
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`WDTX because, inter alia, Lyft maintains two Hubs in WDTX.9 In making this argument, AGIS
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`ignores the focus of this factor: whether non-witness evidence is located in or near the proposed
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`transferee venue. See In re Apple Inc., 979 F.3d 1332, 1339-40 (Fed. Cir. 2020). None of the
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`evidence sought or relied upon by AGIS is located at or near WDTX. As Lyft has previously
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`notified this Court, AGIS’s allegations in the present case are based on the allegedly infringing
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`operations of Lyft’s applications and servers, which are unrelated to operations carried out at the
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`Lyft Hub facilities located in WDTX. Dkt. 87 at n.5. The relevant evidence concerning the
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`accused functionality is located in NDCA—not WDTX. Id. at 6; In re Genentech, Inc., 566 F.3d
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`1338, 1345 (Fed. Cir. 2009) (“In patent infringement cases, the bulk of the relevant evidence
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`usually comes from the accused infringer.”)
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`AGIS’s allegations that non-party “AGIS, Inc. . . . maintains an office in the WDTX,” and
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`“maintains documents and records at its Austin office” (see Dkt. 258 at 12) was
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` Ex. 4 at
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`49:10-50:5; Ex. 5 at 10:15-22 & 171:2-172:13. To the extent non-party AGIS, Inc. had an office
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`in Austin at all,10 such office
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` See Ex. 4 at 49:10-50:5
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`; Ex. 5 at 10:15-22
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`9 AGIS also asserts that Lyft maintains “Driver Vehicle Services in Austin,” “Express Drive
`Locations in Austin, Fort Worth, and San Antonio,” and “a physical office in Austin, Texas.” See
`id. at 11. Lyft has no understanding of which locations or services are implicated by such assertion,
`and to the extent AGIS attempts to identify locations or services independent of Lyft’s hubs in
`Austin or San Antonio, Lyft disagrees.
`10
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`
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` See Ex. 5 at 17:21-25 & 157:15-24.
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`10
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` & 171:2-172:13
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` AGIS points to no other facilities in WDTX that could potentially
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`serve as sources of proof in this case. These facts, in combination with the Federal Circuit’s
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`recognition that the predominant sources of proof come from the alleged infringer, cut against
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`AGIS’s argument that this factor weighs in favor of transfer to WDTX. See In re Genentech, 566
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`F.3d at 1345.
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`b. Availability of Compulsory Process to Secure the Attendance of Witnesses
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`As mentioned above, AGIS conflates the “compulsory process” factor with the “willing
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`witnesses” factor when discussing the § 1404 factors in its Motion. Dkt. 258 at 12. When these
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`factors are evaluated independently—as is proper—it is clear that neither of these factors favors
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`transfer to WDTX as alleged by AGIS.
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`The “compulsory process” factor instructs the Court to consider “availability of
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`compulsory process to secure the attendance of witnesses, particularly non-party witnesses whose
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`attendance may need to be secured by a court order.” AGIS Software Dev. LLC v. Apple, Inc., No.
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`2:17-CV-00516-JRG, 2018 U.S. Dist. LEXIS 94947, at *11 (E.D. Tex. June 6, 2018) (citing In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir. 2008). The only witnesses that AGIS
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`identifies in its Motion that are arguably subject to the subpoena power of WDTX are Eric
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`Armstrong, Mr. Sietsema, and AGIS’s technical expert, Mr. Joseph C McAlexander III. See Fed.
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`R. Civ. P. 45(c)(1); Dkt. 258 at 12. But, as this Court has previously recognized, Mr. McAlexander
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`should not be counted as a witness under the “compulsory process” factor. AGIS Software, 2018
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`U.S. Dist. LEXIS 94947, at *15 (“As to Mr. McAlexander, however, as an expert witness[], he
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`properly counts as a willing witness and is considered under the third factor.”). AGIS, therefore,
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`has only identified two witnesses who can be potentially counted under the “compulsory process”
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`11
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`

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`factor.11 The availability of compulsory process for these two potential witnesses is far outweighed
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`by Lyft’s previous identification of nine potential prior art witnesses that appear to reside in NDCA
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`and would be subject to that court’s subpoena power. See Dkt. 87 at 8. Accordingly, the
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`compulsory process factor does not weigh in favor of transfer to WDTX as alleged by AGIS.
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`c. Cost of Willing Witnesses
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`AGIS’s contention that the “willing witnesses” factor also favors transfer to WDTX is
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`similarly unconvincing. Aside from Mr. Sietsema, all of the other witnesses AGIS identifies in its
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`Motion would have to travel significant distances (i.e., more than 100 miles) in order to attend trial
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`in WDTX. Indeed, Malcolm K. Beyer, Jr., Ronald Wisneski, and Margaret Beyer all reside in
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`Florida; Christopher R. Rice resides in Colorado; Sandel Blackwell resides in Kansas; and both
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`Mr. Armstrong and Mr. McAlexander live in northeast Texas. AGIS also identified AGIS, Inc.
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`employees Rebecca Clark and George Barros, located in Kansas and Virginia, respectively, as
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`having relevant knowledge, and due to their affiliate relationship with AGIS and previous
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`agreement to be deposed in this case, Lyft expects them to be willing witnesses under this factor.
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`See Ex. 6 at 8-9. Furthermore, AGIS’s damages expert—Jim Bergman—and both of AGIS’s
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`source code experts—Dan Manheim and William Wong—are located in California. The personal
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`and financial cost of bringing each of these witnesses to WDTX would be substantial, especially
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`when considering that all of Lyft’s witnesses having information pertinent to AGIS’s claims,
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`including Neil Seigel who developed a key piece of prior art and submitted an expert report
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`concerning the same, are located in California.12 This factor, therefore, does not favor transfer to
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`WDTX.
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`11 And, because Mr. Armstrong is a full-time consultant for AGIS’s affiliate, compulsory process
`would likely not be needed to obtain testimony from Mr. Armstrong.
`12 Although AGIS identifies Mr. Loosen as a Lyft witness for which WDTX would be more
`convenient, Mr. Loosen was only deposed by AGIS with respect to its improper venue allegations
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`12
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`

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`d. Substantial Local Interest
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`In support of AGIS’s assertion that the local interest factor favors transfer to WDTX, AGIS
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`argues that Texas has a local interest in resolving the dispute because it was brought by a Texas
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`resident that “maintains all of its books and records, a data center, and employs individuals residing
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`in Texas,”13 and because Lyft maintains facilities here. Dkt. 258 at 13. But, the parties’ gener