Case 2:21-cv-00072-JRG-RSP Document 360 Filed 02/15/22 Page 1 of 8 PageID #: 23174
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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 SUR-REPLY
`IN FURTHER 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 360 Filed 02/15/22 Page 2 of 8 PageID #: 23175
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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)................................................................................................1, 3
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`CRST Van Expedited, Inc. v. E.E.O.C.,
`578 U.S. 419 (2016) ...............................................................................................................1, 3
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`Lyft Inc. v. AGIS Software Development LLC,
`Case No. 21-cv-04653-BLF, Dkt. 61 (N.D. Cal., January 28, 2022) ....................................1, 2
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`Statutes
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`35 U.S.C § 285 .................................................................................................................................2
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`Other Authorities
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`Fed. R. Civ. P. 54(b) ........................................................................................................................2
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`Fed. R. Civ. P. 54(d) ........................................................................................................................2
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`i
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`Case 2:21-cv-00072-JRG-RSP Document 360 Filed 02/15/22 Page 3 of 8 PageID #: 23176
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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 sur-reply in further 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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`This is a dispute over whether the deadlines apply to Lyft. Lyft cannot show good cause
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`for this extension because the deadlines do not apply to Lyft when it is not the “prevailing party”
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`under the applicable rules. The Court should not endorse the applicability of this deadline to Lyft.
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`In addition, Lyft expressly declines to address the question of whether it is a “prevailing party”
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`and refuses to compare the instant facts to the circumstances of the cases it contends support its
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`motion. Those two cases, CRST and B.E. Tech, involve exceptional circumstances where the
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`district court specifically identified a defendant as a “prevailing party.” Those specific
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`identifications invited the defendants to request costs and fees. It is undisputed that there are no
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`such facts here. Lyft’s refusal to address the shortcoming of its own situation improperly shifts the
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`burden of demonstrating good cause to the Court. Respectfully, the Court should decline to do the
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`work for Lyft.
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`As a preliminary matter, on January 28, 2022, the Northern District of California granted
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`AGIS’s motion to dismiss Lyft’s declaratory-judgment complaint for lack of personal jurisdiction.
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`Lyft Inc. v. AGIS Software Development LLC, Case No. 21-cv-04653-BLF, Dkt. 61 (N.D. Cal.,
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`January 28, 2022). In that case, the Court “agree[d] with AGIS Software” and found that “Lyft has
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`not alleged enough facts to indicate that this case involves a situation similar to the one in Trimble”
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`which “involved a very specific set of facts.” Id. at 5-6. The Court found that “Lyft can only
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`generally allege licensing negotiations between AGIS Software and California companies” and
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`that “Lyft has failed to meet its burden of showing that AGIS Software purposefully directed its
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`Case 2:21-cv-00072-JRG-RSP Document 360 Filed 02/15/22 Page 4 of 8 PageID #: 23177
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`activities at residents of the forum based on Trimble.” Id. at 5-6. The Court also rejected Lyft’s
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`alter ego theory finding that “Lyft has alleged minimal facts. . .not sufficient to meet Lyft’s burden
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`for showing that AGIS Software, AGIS, Inc., and AGIS Holdings had a unity of interest.” Id. at 7-
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`8. Under Lyft’s interpretation of “prevailing party,” AGIS may now request costs and attorney
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`fees for that case.
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`In its Reply for this Motion, Lyft misleads the Court when it states that “AGIS failed to
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`provide any basis for opposing the requested extension.” Reply at 3. But in the same paragraph,
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`Lyft states that AGIS responded. Id. As explained in its briefing, AGIS responded that Lyft is
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`unable to show that Lyft is the “prevailing party,” as required by Fed. R. Civ. P. 54(d) and 35
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`U.S.C § 285, and Lyft cannot obtain costs under L.R. CV-54 because there is no “final judgment
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`or by judgment that a presiding judge directs be entered as final under Fed. R. Civ. P. 54(b).”
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`Because neither deadline for costs nor fees applies to it, Lyft lacks sufficient cause to extend the
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`deadline.
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`Lyft’s Reply confirms that it lacks sufficient good cause required to receive relief under
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`this Motion. Rather than explain the applicability of the deadline it seeks to extend, Lyft “defer[s]
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`until the appropriate time to provide a fulsome analysis” and shifts the burden onto the Court to
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`analyze the cases to find a reason to grant the extension. Lyft’s attempt to “correct certain
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`mischaracterizations or inaccuracies in AGIS’s Response” is limited to the simple identification
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`of three additional cases, none of which Lyft contends apply to the issue of whether Lyft can be a
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`“prevailing party.” Reply at 3. Lyft does not compare or contrast any of the circumstances of the
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`cases, and Lyft does not attempt to distinguish AGIS’s presentation of the cases. Lyft simply waves
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`its hand and expects the Court to review the cases and make the arguments for it. Reply at 3.
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`Lyft does not dispute that the Report and Recommendation did not identify a “prevailing
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`2
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`Case 2:21-cv-00072-JRG-RSP Document 360 Filed 02/15/22 Page 5 of 8 PageID #: 23178
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`party.” Dkt. 212 at 14. Disregarding that Lyft was not declared a “prevailing party” in this action,
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`Lyft generally alleges that Defendant can seek costs and fees as a prevailing party. But whether
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`the district court can ever find defendants to be prevailing parties is not the issue before the Court.
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`The question is whether Lyft is the prevailing party in this case. It is not.
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`It is undisputed that the Court did not declare Lyft a “prevailing party” in this action. The
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`specific identification of a prevailing party in the motion to dismiss was a predicate requirement
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`in both cases cited by Lyft. The reason why those disputes advanced to appeal was that the district
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`court specifically identified the defendants as prevailing parties. Such cases are few and far
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`between because, unlike this action, they involve exceptional circumstances. Regarding the first
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`case, Lyft does not dispute that CRST involves “exceptionally rare circumstances” where an
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`agency “wholly abandoned its statutory duties” to investigate and conciliate the claims of class
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`members in a Title VII employment discrimination action. Lyft does not dispute that, in CRST, the
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`district court specifically identified the defendant as a “prevailing party” and specifically invited
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`the defendant to request costs after the agency. CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S.
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`419, 427 (2016) (“The District Court then dismissed the suit, held that CRST is a prevailing party,
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`and invited CRST to apply for attorney’s fees.”). Regarding the second case, Lyft does not dispute
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`that, in B.E. Tech, the district court’s order dismissing the action specifically identified the
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`defendant as the “prevailing party” after the PTAB invalidated all asserted claims in a parallel
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`administrative proceeding and the plaintiff did not withdraw its claims. B.E. Tech., L.L.C. v.
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`Facebook, Inc., 940 F.3d 675, 677 (Fed. Cir. 2019). Lyft does not dispute that both of these cases
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`involve a specific finding in the district court’s order identifying a particular “prevailing party.”
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`Other than generally showing that a defendant can be a prevailing party, Lyft provides no authority
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`to show that it can proceed with its request for costs and fees without being declared a prevailing
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 360 Filed 02/15/22 Page 6 of 8 PageID #: 23179
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`party on a motion denied without prejudice.
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`Lyft does not dispute that Plaintiff filed a timely motion for reconsideration (Dkt. 258) and
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`Lyft did not file a motion for reconsideration on any grounds. Lyft does not dispute that it has been
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`aware of the Court’s findings in the Report and Recommendation since November 10, 2021.
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`Besides conclusory hand-waving (Reply at 4), Lyft provides no factual or legal basis to show that
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`Lyft has not waived any rights to obtain the predicate findings necessary to request costs and fees.
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`Because the Court did not identify any “prevailing party” and because the Court dismissed
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`the case “without prejudice,” the record, as it stands, identifies no prevailing party. Dkt. 334
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`(adopting Dkt. 212 at 14). In the absence of a “prevailing party,” the deadlines for costs and fees
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`do not apply to Lyft. Respectfully, AGIS requests that the Court deny Defendant’s Opposed
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`Motion for Extension of Time to File Bill of Costs and Motion for Fees (Dkt. 356) in its entirety.
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`Dated: February 15, 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
`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
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`Case 2:21-cv-00072-JRG-RSP Document 360 Filed 02/15/22 Page 7 of 8 PageID #: 23180
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`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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`5
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`Case 2:21-cv-00072-JRG-RSP Document 360 Filed 02/15/22 Page 8 of 8 PageID #: 23181
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 15, 2022, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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