Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 1 of 14 PageID #:
`21032
`
`Exhibit 1
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`
`21032
`
`Exhibit 1
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 2 of 14 PageID #:
`1
`21033
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`CIVIL ACTION NO.
`AGIS SOFTWARE DEVELOPMENT, LLC, )(
`2:21-cv-00072-JRG-RSP
`
`)(
`
`(Lead Case)
`PLAINTIFF(S),
`)(
`
`)(
`MARSHALL, TEXAS
`versus
`)(
`)( SEPTEMBER 29, 2021
`T-MOBILE USA, INC., and
`)(
`)(
`T-MOBILE US, INC.,
`)(
`DEFENDANT(S).
`)(
`
`
`
`
`
`CIVIL ACTION NO.
`AGIS SOFTWARE DEVELOPMENT, LLC, )(
`2:21-cv-00024-JRG-RSP
`
`)(
` (Member Case)
`PLAINTIFF(S),
`)(
`
`)(
`
`versus
`)(
`)(
`LYFT, INC.
`)(
`________________________________________________________
`
`AGIS SOFTWARE DEVELOPMENT, LLC, )(
`CIVIL ACTION NO.
`
`)(
`2:21-cv-00026-JRG-RSP
`PLAINTIFF(S),
`)(
` (Member Case)
`
`)(
`versus
`)(
`
`)(
`UBER TECHNOLOGIES, INC.,
`)(
`)(
`d/b/a UBER,
`_______________________________________________________
`
`AGIS SOFTWARE DEVELOPMENT, LLC, )(
`CIVIL ACTION NO.
`)(
`2:21-cv-00029-JRG-RSP
`
`PLAINTIFF(S),
`)(
` (Member Case)
`
`)(
`versus
`)(
`
`)(
`WHATSAPP, INC.
`)(
`_______________________________________________________
`TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 3 of 14 PageID #:
`3
`21034
`MARSHALL, TEXAS; MONDAY, SEPTEMBER 29, 2021
`1:30 P.M.
`THE COURT: For the record, we're here this afternoon
`for the hearing on the motion to dismiss filed by Lyft in the
`case of AGIS Software Development versus T-Mobile -- or, at
`least, that's the lead case -- which is Number 2:21-72.
`Counsel state their appearances.
`MS. TRUELOVE: Good afternoon, Your Honor. Jennifer
`Truelove and Vincent Rubino here on behalf of AGIS. We are
`ready to proceed.
`Mr. Rubino will be conducting the argument on behalf of
`plaintiff this afternoon.
`And if it pleases the Court, could I be excused shortly
`before 2 to attend some scheduling conferences in Judge
`Gilstrap's court?
`THE COURT: I understand you're required upstairs at
`some point; and, certainly, you're free to take off whenever
`you need to do that.
`MS. TRUELOVE: Thank you, Your Honor.
`MR. DACUS: Good afternoon. Daron Dacus here on behalf
`of Lyft. Here with me are Jeremy Taylor and Bethany Salpietra
`from the Baker Botts firm. Also with us is Mr. Max Loosen, who
`is the client representative from Lyft, Your Honor. And we are
`ready to proceed.
`THE COURT: All right. Thank you, Mr. Dacus.
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 4 of 14 PageID #:
`8
`21035
`those properties. There's no Lyft employees onsite. Lyft is
`like any other customer, a repeat customer, that may have
`agreements with these organizations to provide repair,
`maintenance, services.
`Finally, the other thing that has come up during the
`briefing is Lyft's mobile support trucks. Lyft maintains a
`handful of trucks that operate out of Lyft's hubs, none of
`which are located in the Eastern District of Texas. The
`closest one would be near the DFW Airport in Irving and some
`Lyft mobile vehicle trucks and service drivers that may be
`using the Lyft app in the Eastern District of Texas. These
`are, by definition, not regular and established places of
`business in the Eastern District of Texas. Nine times out of
`10 -- maybe even more than that -- they're not even going to be
`in the Eastern District of Texas. They're based out of Irving.
`But they do provide service in the Eastern District of Texas if
`requested by the drives that are using the Lyft app. Your
`Honor, that's why venue's improper.
`If Your Honor grants the motion that Lyft has brought --
`Your Honor, of course, has an option to dismiss the case or
`transfer the case, and I'd only briefly like to touch on that
`point.
`We'd ask you to dismiss the case or transfer to the
`Northern District of California. AGIS, plaintiff, is asking
`for the case to be transferred to the Western District of
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 5 of 14 PageID #:
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`21036
`Texas. And I won't go through the transfer factors. You can
`read those in our briefing. We think they overwhelmingly
`support transfer to the Northern District of California. But I
`just want to bring to your attention, to the extent you were
`thinking about transferring to one of those districts.
`First of all, very recently, the Western District of
`Texas transferred out a case, the Ikorongo v Lyft case, for
`convenience, into the Northern District of California. The
`facts of that case will not be meaningfully different.
`Although there will be differences, the facts that determined
`that motion will be the same here. So the expectation is that,
`if this case is transferred to the Western District of Texas,
`it would then be transferred likely again on the same ground to
`the Northern District of California.
`Secondly, Judge Albright, actually in a different case,
`where I am actually counsel, Quartz Auto v Lyft, dismissed a
`patent very similar to the '838 patent asserted against Lyft in
`this case, where the accused infringement occurred on Lyft's
`servers. Those servers don't exist in the Western District of
`Texas; and, thus, there's no active infringement there.
`Dismissed on a venue basis and admitted it was a pendent venue
`issue. It was dismissed from the Western District of Texas,
`and that patent has proceeded in the Northern District of
`California.
`Finally, perhaps the most important point, is there's
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 6 of 14 PageID #:
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`another case already pending in the Northern District of
`California, and not our case. We did file a declaratory
`judgment there to address the dispute between AGIS and Lyft,
`but there's a case involving Smith Micro, involving products
`that are not at issue in the Eastern District of Texas, cases
`with T-Mobile or any of the other cases -- I think there's a
`fight on personal jurisdiction. But assuming that is resolved,
`it will proceed in the Northern District of California. So
`introducing the Western District of Texas is a third judicial
`district -- not very good use of judicial resources, to
`introduce cases involving the same patents, some overlapping
`technologies, to yet a third judicial district.
`So, we think the Northern District of California, should
`you transfer it at all. Of course, you could just dismiss it
`altogether.
`THE COURT: Mr. Taylor, are you saying that there is a
`case in the Northern District of California involving the same
`patent?
`MR. TAYLOR: That is correct.
`Overlapping patents, I should say.
`THE COURT: Meaning, involving at least some of the
`patents-in-suit here are also in suit there?
`MR. TAYLOR: That's correct, Your Honor.
`THE COURT: Okay.
`MR. TAYLOR: And it's not all the patents, to be clear.
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 7 of 14 PageID #:
`41
`21038
`Does Lyft have locations elsewhere in Texas?
`Q
`Elsewhere in Texas. Sorry. Yes, we do. We have four
`A
`offices. One in Irving. One in Houston. One in Austin. And
`one in San Antonio.
`Q
`And just to reiterate, none of those locations are in
`the Eastern District of Texas; correct?
`A
`That's correct.
`Q
`And all of the information that you gave about Lyft,
`presence or lack thereof in the Eastern District of Texas,
`that's true of today; is that correct?
`A
`That's correct.
`Q
`Is it true from January 2021 through today?
`A
`It is. We had another site earlier this year in Euless,
`Texas, which is not in the Eastern District.
`Q
`There's been a lot of talk, you are heard us talking
`about an Express Drive location in Plano, Texas; specifically,
`at 928 West Spring Creek Parkway. Are you familiar with this
`location?
`A
`I am.
`Q
`Is that location -- or is that address, rather, in the
`Eastern District of Texas?
`A
`It is.
`Q
`And at that address is the location of a Pep Boys store;
`is that correct?
`A
`That's correct.
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 8 of 14 PageID #:
`42
`21039
`And at some point in the past Lyft operated an Express
`Q
`Drive location inside that Pep Boys store; correct?
`A
`That's correct.
`Q
`What did Lyft use the Express Drive location for in
`Plano?
`That location was used to facilitate the rental program
`A
`with Hertz primarily.
`Q
`And there were Lyft employees there to facility the
`rental program with Hertz; correct?
`A
`That's correct. One to two employees.
`Q
`Is that Plano Express Drive location currently
`operating?
`A
`No, it is not.
`Q
`And, roughly, when did the Plano Express Drive location
`cease operations?
`A
`In August of 2019.
`Q
`And we heard some discussion earlier about the exact
`day. It's fair to say you don't known exactly which day in
`August it closed, but you know it closed in August; correct?
`A
`That's correct. It would have been around that
`timeframe, that's correct.
`Q
`Why did it close?
`A
`I do not know the specific reason for that exact site.
`But I know, generally, these type of sites come and go for
`various reasons. Some of these reasons could be just overall
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 9 of 14 PageID #:
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`21040
`relations with the company at a nation level. Some,
`operationally, constraints could develop. So for, you know,
`example, it just doesn't make sense operationally. There are
`better sites or just less visitors. There's various reasons
`that could cause a site to open or close.
`Q
`Stepping back and looking at all of the Eastern District
`of Texas, does Lyft have any Express Drive locations currently
`in the Eastern District of Texas?
`A
`No, we do not.
`Q
`Again, from January 2021, when this lawsuit was filed
`until today, has Lyft had any Express Drive locations in the
`Eastern District of Texas?
`A
`We have not.
`Q
`In fact, as you testified earlier, Lyft doesn't have any
`offices or locations in the Eastern District of Texas; is that
`correct?
`A
`That's correct.
`MR. RUBINO: Objection. Leading.
`BY MR. TAYLOR:
`Does Lyft have users in the Eastern District of Texas?
`Q
`Yes. If you refer to users, for example, riders on the
`A
`platform, yes.
`Q
`Riders and drivers; right? Both can use Lyft's
`application; correct?
`A
`That's correct.
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 10 of 14 PageID #:
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`21041
`How does Lyft support its users, whether they be riders
`Q
`or drivers?
`A
`Lyft creates a rideshare platform where riders and
`drivers can come and go to provide rides for transportation.
`Q
`And does Lyft provide any support for getting on the
`application, having trouble with the application?
`A
`We do. We provide support in relation to those
`services.
`Q
`And where are the individuals at Lyft that provide that
`sort of remote support?
`A
`Those individuals can be in many locations. We have a
`big support office in Nashville, Tennessee, but we have other
`offices in other places as well.
`Q
`Lyft also provides in-person support as well; correct?
`A
`That's correct.
`Q
`And how does Lyft provide in-person support for users
`that may be in the Eastern District of Texas?
`A
`So our in-person support is focused on drivers, not
`focused on riders. And this experience would be similar to
`using an Apple product, for example, where you could get
`support remotely, but if you really wanted to meet someone
`face-to-face you can meet that person face-to-face on what we
`call a hub location.
`Q
`Are where are Lyft's hub locations located in Texas?
`A
`In the four areas I mentioned, Irving, Houston, Austin
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 11 of 14 PageID #:
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`21042
`I see those numbered amendments, yes.
`A
`And the fifth amendment to the agreement specifies that
`Q
`its effective in 2021; right?
`A
`I do see that at the top.
`Q
`I believe the Hertz agreement was Exhibit 2 to the
`hearing, Lyft-Agis_0001549 through 1581.
`THE COURT: I think that's Exhibit 1.
`MR. RUBINO: Apologies. That's exhibit --
`THE COURT: And the Hertz agreement is Exhibit 2, I
`believe.
`MR. RUBINO: Yes, this is Hertz Exhibit Agreement 2.
`Sorry, Your Honor. I was moving on.
`BY MR. RUBINO:
`And this is the agreement that we saw at your
`Q
`deposition. And you said looks like agreements we have with
`our vendors; right?
`A
`That's correct.
`Q
`Do you see Section 3.3?
`A
`Could you focus a little, please?
`That's better. Thank you.
`So do you see, in Section 3.3, where the agreement says:
`Q
`Each LRP location will be open during its normal business hours
`and accessible to Lyft employees and LRP drivers according to
`the terms of this agreement.
`Do you see that?
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 12 of 14 PageID #:
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`21043
`I see that in the contract, yes.
`A
`So far, Pep Boys agreement, Hertz agreement, both permit
`Q
`and explicitly allow access to Lyft on premises to conduct
`business. Those are the agreements we have seen thus far;
`correct?
`A
`We have seen those agreements, yes.
`Q
`And, to your knowledge, you haven't produced or seen any
`NTB or Firestone or Discount Tire agreements; right?
`A
`That is correct.
`Q
`Sir, at your deposition, I'd asked you -- before we get
`to that, let me ask you a different question.
`I will let you drink first.
`Thank you.
`THE COURT: While he's doing that, Mr. Rubino, do you
`contend that there is a location within the district that is
`subject to this Hertz agreement, Exhibit P-2?
`MR. RUBINO: Your Honor, we contend two things about the
`Hertz agreement.
`One is that the facility at the Pep Boys that had a
`Hertz rental counter at the location specified in the
`complaint, that that facility operated pursuant to this
`agreement.
`That, even if Lyft were correct that it closed sometime
`before the filing of the complaint, that AGIS was diligent in
`filing its complaint after that location may have ceased to
`
`A
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 13 of 14 PageID #:
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`21044
`
`exist.
`
`THE COURT: Diligence certainly goes to good faith, if
`good faith became at issue for some reason. But venue requires
`that the facts actually exist at this time of the filing;
`right?
`MR. RUBINO: Your Honor, I think that the case law --
`and we have a site for this.
`So, in the In Re: Google case, there was a footnote,
`and the Federal Circuit cited to Welch Sci Co versus Human
`Engineering Institute, Inc., 416 F.2d 32 at 35, Note 1, which
`held that venue was proper if the defendant had a regular and
`established place of business at the time the cause of the
`action accrued and the suit was filed within a reasonable time
`after.
`So, Your Honor, the cause of action here certainly
`accrued long before that facility closed. Six years' damages.
`Lyft had been conducting business in the district, infringing
`the patents. And the reasonableness of the amount of time,
`particularly in view of the pandemic, should be held in AGIS's
`favor.
`
`THE COURT: All right.
`BY MR. RUBINO:
`Sir, at your deposition, I had asked you about -- well,
`Q
`we had discussed your knowledge of Lyft and its products.
`You purport to know how the app works; right?
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`Case 2:21-cv-00072-JRG-RSP Document 320-2 Filed 01/14/22 Page 14 of 14 PageID #:
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`21045
`THE COURT: No. I just did not want to use the wrong
`term without knowing it.
`MR. TAYLOR: Thank you, Your Honor.
`THE COURT: All right. Thank you, Mr. Taylor.
`Well, I appreciate the arguments and the evidence. They
`have been helpful. You have given me a lot to consider, and I
`will try to get a ruling out on this motion promptly.
`So, with that, we're adjourned. Thank you.
`[PROCEEDINGS IN RECESS]
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`OFFICIAL COURT REPORTER'S CERTIFICATE
`
`I (we) certify that the foregoing is a correct
`transcript of proceedings in the above-entitled matter.
`
`/S/ Susan A. Zielie, RMR, FCRR
`Susan A. Zielie, RMR, FCRR
`October 26, 2021
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