Case 2:21-cv-00072-JRG-RSP Document 358 Filed 02/08/22 Page 1 of 6 PageID #: 23168
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`§§
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`§
`§
`§
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`§§§
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`§§
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`§
`§
`§
`§
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`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
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`T-MOBILE USA, INC., and T-MOBILE
`US, INC.
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`LYFT, INC.
`
`DEFENDANT LYFT, INC.’S REPLY IN SUPPORT OF OPPOSED MOTION FOR
`EXTENSION OF TIME TO FILE BILL OF COSTS AND MOTION FOR FEES
`(DKT. 356)
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`On February 2, 2022, Lyft filed an Opposed Motion for Extension of Time to File Bill of
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`Costs and Motion for Fees (Dkt. 356) (hereinafter “Motion”), requesting this Court to extend the
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`deadline to submit any request for an award of costs and/or attorneys’ fees. AGIS’s Response
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`(Dkt. 357) fails to address the issue-at-hand—whether this Court should grant the extension sought
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`by Lyft. Instead, AGIS’s response attempts to argue the merits of the underlying issue regarding
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`Lyft’s ability to seek costs and fees in this case. Id. AGIS’s response highlights the need for the
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`requested extension, as Lyft is hopeful that the parties can resolve their disagreement without
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`burdening the Court. Good cause therefore exists to grant Lyft’s Motion and Lyft respectfully
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`requests this Court do so.
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 358 Filed 02/08/22 Page 2 of 6 PageID #: 23169
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`I.
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`BACKGROUND
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`On January 19, 2022, this Court dismissed this case for improper venue and directed the
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`clerk to close this action. Dkt. 334. Pursuant to LR-CV54(b)(2), counsel for Lyft emailed counsel
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`for AGIS a copy of its proposed bill of costs on January 31, 2022 and informed AGIS at that time
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`that Lyft was willing to meet and confer to the extent there were any areas of disagreement.
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`Counsel for AGIS responded the following day expressing its view that Lyft was unable to seek
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`costs or fees in this matter and requesting Lyft provide its bases for seeking such relief. In response
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`to AGIS’s request, counsel for Lyft provided authority in support of awarding Lyft costs as the
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`prevailing party, which included multiple cases, including one from the Supreme Court, holding
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`that a defendant may be a prevailing party absent a judgment on the merits1 and additional cases
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`showing district courts awarding costs in cases dismissed without prejudice.2 Having received no
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`reply from AGIS’s counsel regarding the authority it had requested, Lyft again reached out to
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`counsel for AGIS to inform AGIS of its intent to file a motion for extension of time in order for
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`the parties to further consider the others’ position. Counsel for AGIS responded only to confirm
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`that it opposed Lyft’s filing of such motion without providing any reasons despite Lyft’s request.
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`II.
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`ARGUMENT
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`Rule 6(b) of the Federal Rules of Civil Procedure permits this Court to extend deadlines
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`“for good cause.” FED. R. CIV. P. 6(b). Good cause exists for the extension sought by Lyft in its
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`Motion (Dkt. 356) as Lyft intends to meet and confer with AGIS during the extended time period
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`to resolve (or, at a minimum, narrow) areas of disagreement related to Lyft’s proposed Bill of
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`1 CRST Van Expedited, Inc. v. Equal Emp’t Opportunity Commc’n, 578 U.S. 419, 431 (2016); B.E. Tech., L.L.C. v.
`Facebook, Inc., 940 F.3d 675 (Fed. Cir. 2019).
`2 Smith v. Univ. of N. Tex. Health Sci. Ctr., No. 3:15-cv-03571-L (N.D. Tex. Apr. 12, 2016), Dkt. 12; Chadwick v.
`Universal Health Servs., Inc. et al., No. 5:16-cv-01135-JWP (W.D. Tex. Mar. 10, 2017), Dkt. 22; Flowrider Surf, Ltd.
`et al v. Pac. Surf Designs, Inc., No. 3:15-cv-01879-BEN-BLM (S.D. Cal. Oct. 22, 2019), Dkt. 295.
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`2
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`Case 2:21-cv-00072-JRG-RSP Document 358 Filed 02/08/22 Page 3 of 6 PageID #: 23170
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`Costs. AGIS failed to provide any basis for opposing the requested extension despite having an
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`opportunity to do so both before and after Lyft filed its Motion. Instead, in response to Lyft’s
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`Motion requesting an extension, AGIS attempts to engage on the merits whether costs and/or fees
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`are appropriately awarded here. Such response, however, ignores Lyft’s present request for relief
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`and, more importantly, demonstrates the need for it. Indeed, as made clear by AGIS’s response,
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`the parties have opposing views regarding whether Lyft may seek costs and fees in the instant case,
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`which is why Lyft seeks additional time to determine whether the parties can reach an agreement
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`on this underlying issue and avoid unnecessary motion practice.
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`Although Lyft will defer until the appropriate time to provide a fulsome analysis of the
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`case law supporting its position that this Court can and should award Lyft its costs and fees in this
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`matter, Lyft would be remiss if it did not correct certain mischaracterizations or inaccuracies
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`included in AGIS’s Response (Dkt. 357). First, Lyft identified more than two cases in response to
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`AGIS’s request for authority supporting Lyft’s position that it is entitled to costs and fees. See
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`supra § 1; Dkt. 357 at 3 (suggesting that Lyft only identified two cases by stating “Lyft responded
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`with an identification of two cases”). Lyft identified five exemplary cases, and would likely
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`identify further support if the parties cannot resolve their dispute and briefing to the Court is
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`needed. The three identified cases that AGIS wholly ignored in its response3 are exemplary district
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`court decisions awarding costs in cases dismissed without prejudice, which confirms the merit of
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`Lyft’s position under at least the Federal Circuit’s B.E. Tech. decision. See 940 F.3d at 679 (“[A]
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`defendant can be deemed a prevailing party even if the case is dismissed on procedural grounds
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`rather than on the merits.”). Second, AGIS’s Response (Dkt. 357) mischaracterizes the authority
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`that it does address (i.e., CRST and B.E. Tech.) in an attempt to misguide this Court into believing
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`3 See n. 2.
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 358 Filed 02/08/22 Page 4 of 6 PageID #: 23171
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`that a district court’s identification of a party as the “prevailing party” is a predicate finding to
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`awarding costs and fees. Neither case sets forth such principle. Third, AGIS argues—without
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`citation to any legal support—that “Lyft [] waived any right it had to obtain the predicate finding
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`of a ‘prevailing party’” by not seeking reconsideration “for any part of the Court’s findings” (which
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`were favorable to Lyft).
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`Consistent with LR-CV54(b)(2) and this Court’s Standing Order Regarding Bill of Costs,
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`Lyft has been trying to meet and confer with AGIS to narrow or even eliminate any disputes related
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`to Lyft’s proposed Bill of Costs. Although AGIS has not yet confirmed a time to meet and confer,
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`Lyft is optimistic that the parties will be able to confer within the requested extension period to
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`resolve the disputed issues or significantly narrow them for presentation to the Court in a concise
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`manner, ideally a short joint filing identifying the parties’ positions.
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`III.CONCLUSION
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`For the foregoing reasons, Lyft respectfully requests this Court grant a two-week extension
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`of time, until February 16, 2022, to submit a bill of costs and file a motion for attorneys’ fees.
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`Date: February 8, 2022
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`Respectfully submitted,
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`/s/ Jeremy J. Taylor
`
`Jeremy J. Taylor
`Arya Moshiri (Pro Hac Vice)
`Baker Botts L.L.P.
`jeremy.taylor@bakerbotts.com
`arya.moshiri@bakerbotts.com
`101 California St., Suite 3600
`San Francisco, CA 94111
`Telephone: (415) 291-6200
`Facsimile: (415) 291-6300
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`4
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`Case 2:21-cv-00072-JRG-RSP Document 358 Filed 02/08/22 Page 5 of 6 PageID #: 23172
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`Danny David
`Baker Botts L.L.P.
`danny.david@bakerbotts.com
`910 Louisiana Street
`Houston, TX 77002
`Telephone: (713) 229-1234
`Facsimile: (713) 229-1522
`
`Kurt Pankratz
`Bethany R. Salpietra
`Megan LaDriere White
`Baker Botts L.L.P.
`kurt.pankratz@bakerbotts.com
`bethany.salpietra@bakerbotts.com
`megan.ladriere@bakerbotts.com
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: (214) 953-6500
`Facsimile: (214) 953-6503
`
`Jennifer C. Tempesta
`Baker Botts L.L.P.
`jennifer.tempesta@bakerbotts.com
`30 Rockefeller Plaza, 44th Floor
`New York, NY 10112
`Telephone: (212) 408-2571
`Facsimile: (212) 259-2571
`
`Lauren J. Dreyer
`Baker Botts L.L.P.
`lauren.dreyer@bakerbotts.com
`700 K Street NW
`Washington, DC 2000
`Telephone: (202) 639-7823
`Facsimile: (202) 639-1153
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`Brianna Potter (Pro Hac Vice)
`Baker Botts L.L.P.
`brianna.potter@bakerbotts.com
`1001 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 739-7556
`Facsimile: (650) 739-7656
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 358 Filed 02/08/22 Page 6 of 6 PageID #: 23173
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`Deron R. Dacus
`The Dacus Firm, P.C.
`ddacus@dacusfirm.com
`821 ESE Loop 323, Suite 430
`Tyler, Texas 75701
`Telephone: (903) 705-1117
`Facsimile: (903) 581-2543
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`Attorneys for Defendant Lyft, Inc.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have consented
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`to electronic services are being served with a copy of this document via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3) on this the 8th of February, 2022.
`
`/s/ Jeremy J. Taylor
`Jeremy J. Taylor
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`6
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