Case 2:21-cv-00072-JRG-RSP Document 357 Filed 02/04/22 Page 1 of 9 PageID #: 23158
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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,
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`LYFT, INC.,
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`v.
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`Plaintiff,
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`Defendant.
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`Case No. 2:21-cv-00024-JRG
`(MEMBER CASE)
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`JURY TRIAL DEMANDED
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE
`IN OPPOSITION TO DEFENDANT LYFT, INC.’S
`OPPOSED MOTION FOR EXTENSION OF TIME TO
`FILE BILL OF COSTS AND MOTION FOR FEES (DKT. 356)
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`Case 2:21-cv-00072-JRG-RSP Document 357 Filed 02/04/22 Page 2 of 9 PageID #: 23159
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION .............................................................................................................. 1
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`BACKGROUND ................................................................................................................ 1
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`LEGAL STANDARDS ...................................................................................................... 2
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`ARGUMENT ...................................................................................................................... 2
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`CONCLUSION ................................................................................................................... 4
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`I.
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`II.
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`III.
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`IV.
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`V.
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`i
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`Case 2:21-cv-00072-JRG-RSP Document 357 Filed 02/04/22 Page 3 of 9 PageID #: 23160
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`B.E. Tech., L.L.C. v. Facebook, Inc.,
`940 F.3d 675 (Fed. Cir. 2019)....................................................................................................3
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`CRST Van Expedited, Inc. v. EEOC,
`578 U.S. 419 (2016), and 2 ........................................................................................................3
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`Statutes
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`28 U.S.C. § 1406(a) .........................................................................................................................1
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`35 U.S.C § 285 .............................................................................................................................1, 2
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`Other Authorities
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`Fed. R. Civ. P. 54(b) ................................................................................................................1, 2, 4
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`Fed. R. Civ. P. 54(d) ....................................................................................................................1, 2
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`ii
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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 for Extension of Time to File Bill of Costs and Motion
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`for Fees (Dkt. 356) (the “Motion”).
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`I.
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`INTRODUCTION
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`Lyft’s Motion should be denied because Lyft cannot show sufficient cause. Lyft has no
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`factual or legal basis to request the relief of costs and attorney fees.1 Lyft was not identified as the
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`“prevailing party” in this action and the Court has dismissed the case “without prejudice.” Lyft
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`waived any right it had to obtain the predicate finding of a “prevailing party” or to object to the
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`dismissal “without prejudice” when Lyft failed to move for reconsideration of any findings of the
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`Report and Recommendation. Thus, Lyft is unable to demonstrate that it is the “prevailing party,”
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`as required by Fed. R. Civ. P. 54(d) and 35 U.S.C § 285. Additionally, Lyft cannot obtain costs
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`under L.R. CV-54 because there is no “final judgment or by judgment that a presiding judge directs
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`be entered as final under Fed. R. Civ. P. 54(b).” The Court should deny the Motion for want of
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`good cause.
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`II.
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`BACKGROUND
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`On November 10, 2021, the Court issued a Report and Recommendation to dismiss AGIS’s
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`action against Lyft under 28 U.S.C. § 1406(a) “without prejudice.” Dkt. 212 at 14. The Report
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`and Recommendation did not identify a “prevailing party.”
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`Plaintiff filed a timely motion for reconsideration. Dkt. 258. Defendant did not file a
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`motion for reconsideration on any grounds.
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`1 AGIS has informed Lyft that its request is frivolous and vexatious, and AGIS reserves all rights
`to seek costs and attorney fees related to responding to any motions related to Lyft’s requests for
`costs and attorney fees.
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`On January 19, 2022, the Court overruled the objections raised in AGIS’s motion for
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`reconsideration, adopted the Report and Recommendation, and directed the clerk to close the
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`action against Lyft. Dkt. 334.
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`III. LEGAL STANDARDS
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`Fed. R. Civ. P. 54(d) provides that, “[u]nless a federal statute, these rules, or a court order
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`provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing
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`party.”
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`L.R. CV-54 provides that “[a] party awarded costs by final judgment or by judgment
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`that a presiding judge directs be entered as final under Fed. R. Civ. P. 54(b) must apply to the
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`clerk for taxation of such costs by filing a bill of costs. Unless otherwise provided by statute or
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`by an order of the presiding judge, the bill of costs must be filed with the clerk and served on any
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`party entitled to such service no later than fourteen days after the clerk enters the judgment on the
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`docket.”
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`35 U.S.C § 285 provides that “[t]he court in exceptional cases may award reasonable
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`attorney fees to the prevailing party.”
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`IV. ARGUMENT
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`The Court should deny Lyft’s Motion because Lyft has no factual or legal basis to request
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`costs and fees in this action.
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`As a threshold matter in requesting costs and attorney fees under Fed. R. Civ. P. 54(d) and
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`35 U.S.C § 285, the Court must have identified the requesting party as the “prevailing party.” The
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`Court has not identified Lyft as the “prevailing party” (Dkts. 212, 334), and Lyft has no legal basis
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`to hold itself out as the “prevailing party.” Lyft has been aware of the Court’s findings in the
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`Report and Recommendation since November 10, 2021. If Lyft had intended to seek costs and
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`fees, it could have moved for reconsideration of the Report and Recommendation. Lyft failed to
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`do so, and it has thus waived any rights to obtain the predicate findings to request costs and fees.
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`On January 31, 2022, 11:56 P,M., 48 hours before the deadline for its Motion, counsel for
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`Lyft raised the issue of costs for the first time when it emailed counsel for AGIS a copy of its
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`proposed bill of costs. AGIS promptly notified Lyft that it had no legal basis for requesting costs
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`and fees because it had not been identified as the “prevailing party” and because the action had
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`been dismissed “without prejudice.” Dkt. 334 (adopting Dkt. 212 at 14).
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`On February 2, 2022 (the deadline for which Lyft seeks an extension), Lyft responded with
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`an identification of two cases: 1) CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419 (2016), and
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`2) B.E. Tech., L.L.C. v. Facebook, Inc., 940 F.3d 675 (Fed. Cir. 2019). Neither case provides a
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`legal basis for Lyft to request costs and fees.
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`CRST involves “exceptionally rare circumstances” where an agency “wholly abandoned
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`its statutory duties” to investigate and conciliate the claims of class members in a Title VII
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`employment discrimination action. In CRST, the district court specifically identified the defendant
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`as a “prevailing party” and specifically invited the defendant to request costs after the agency.
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`CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 427 (2016) (“The District Court then
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`dismissed the suit, held that CRST is a prevailing party, and invited CRST to apply for attorney’s
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`fees.”). There has been no such finding by the Court in this action. To the contrary, the Court
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`here did not identify any “prevailing party,” and the Court dismissed the case “without prejudice.”
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`Dkt. 334 (adopting Dkt. 212 at 14).
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`Similarly, in B.E. Tech, the district court’s order dismissing the action specifically
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`identified the defendant as the “prevailing party” after the PTAB invalidated all asserted claims in
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`a parallel administrative proceeding and the plaintiff did not withdraw its claims. B.E. Tech.,
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`L.L.C. v. Facebook, Inc., 940 F.3d 675, 677 (Fed. Cir. 2019). Again, both of these cases involve
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`a specific finding in the district court’s order identifying a particular “prevailing party.” Lyft is
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`unable to identify such a finding here.
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`Lyft has waived its right to object to the Court’s findings in this action or to request any
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`sort of modification necessary to seek costs and fees. Lyft has been aware of the Court’s Report
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`and Recommendation since November 10, 2021 and has not sought reconsideration for any part
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`of the Court’s findings. Any late attempt to request additional findings would be untimely.
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`Additionally, Lyft cannot obtain costs under L.R. CV-54 because there is no “final
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`judgment or by judgment that a presiding judge directs be entered as final under Fed. R. Civ. P.
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`54(b).”
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`For at least the above reasons, Lyft cannot demonstrate that it has been diligent and timely
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`in obtaining the predicate findings to obtain the requested relief or that its request is being made
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`in good faith. Permitting Lyft to continue on this path is unfair and prejudicial to AGIS because
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`it seeks relief on bases that contravene the law and this Court’s findings. Lyft has no excuse for
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`its belated attempt to dispute the Court’s findings.
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`V.
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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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`Opposed Motion for Extension of Time to File Bill of Costs and Motion for Fees (Dkt. 356) in its
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`entirety.
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`Dated: February 4, 2022
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`Respectfully submitted,
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` /s/ Alfred R. Fabricant
`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
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`Case 2:21-cv-00072-JRG-RSP Document 357 Filed 02/04/22 Page 8 of 9 PageID #: 23165
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`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
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`Samuel F. Baxter
`State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. 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 357 Filed 02/04/22 Page 9 of 9 PageID #: 23166
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 4, 2022, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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