Case 2:21-cv-00072-JRG-RSP Document 362 Filed 02/17/22 Page 1 of 13 PageID #: 23187
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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 FURTHER EXTENSION OF TIME TO
`FILE BILL OF COSTS AND MOTION FOR FEES (DKT. 361)
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`

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`Case 2:21-cv-00072-JRG-RSP Document 362 Filed 02/17/22 Page 2 of 13 PageID #: 23188
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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 ...................................................................................................................... 3
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`CONCLUSION ................................................................................................................... 8
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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 362 Filed 02/17/22 Page 3 of 13 PageID #: 23189
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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, 4, 6
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`CRST Van Expedited, Inc. v. EEOC,
`578 U.S. 419 (2016), and 2 ............................................................................................3, 4, 5, 6
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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) ....................................7, 8
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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, 3
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`Other Authorities
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`Fed. R. Civ. P. 54(b) ................................................................................................................1, 2, 7
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`Fed. R. Civ. P. 54(d) ................................................................................................................1, 2, 3
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`ii
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`Case 2:21-cv-00072-JRG-RSP Document 362 Filed 02/17/22 Page 4 of 13 PageID #: 23190
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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 Further Extension of Time to File Bill of Costs and
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`Motion for Fees (Dkt. 361) (the “Motion”). This is Lyft’s second motion for an extension to
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`request costs and attorney fees. See Dkt. 356. AGIS hereby incorporates its opposition briefing
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`in Dkts. 357 and 360.
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`I.
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`INTRODUCTION
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`In this serial motion, Lyft artfully suggests that: (a) Lyft does not know AGIS’s position,
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`(b) this Motion moots Lyft’s previous motion for less time, and (c) there is no immediate need for
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`the Court to decide this Motion due to ongoing discussions. Lyft’s suggestions lack candor.
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`The parties have already conferred and are at an impasse over whether the deadlines apply
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`to Lyft. Lyft is unable to show that Lyft is the “prevailing party,” as required by Fed. R. Civ. P.
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`54(d) and 35 U.S.C § 285, and Lyft cannot obtain costs under L.R. CV-54 because there is no
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`“final judgment or by judgment that a presiding judge directs be entered as final under Fed. R. Civ.
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`P. 54(b).” Thus, because the deadlines do not apply to Lyft when it is not the “prevailing party”
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`and there is no final judgment under the applicable rules, Lyft cannot show good cause for the
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`extension. Lyft cannot avoid a decision on the merits by filing a new motion1 or by ignoring the
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`parties’ impasse. AGIS requests a ruling on the merits of this dispute because it involves a
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`threshold issue regarding predicate facts necessary to request the intended relief.
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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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`1 AGIS again reserves the right to seek costs and fees associated with responding to Lyft’s frivolous
`requests.
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`Case 2:21-cv-00072-JRG-RSP Document 362 Filed 02/17/22 Page 5 of 13 PageID #: 23191
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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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`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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`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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`Since being informed that it is not the “prevailing party” and that there is no final judgment,
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`Lyft has done nothing to modify the existing facts.
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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 party.”
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`L.R. CV-54 provides that “[a] party awarded costs by final judgment or by judgment that
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`a presiding judge directs be entered as final under Fed. R. Civ. P. 54(b) must apply to the clerk for
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`taxation of such costs by filing a bill of costs. Unless otherwise provided by statute or by an order
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`of the presiding judge, the bill of costs must be filed with the clerk and served on any party entitled
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`to such service no later than fourteen days after the clerk enters the judgment on the 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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`2
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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. As a threshold matter in requesting costs and attorney fees under Fed.
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`R. Civ. P. 54(d) and 35 U.S.C § 285, the Court must have identified the requesting party as the
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`“prevailing party.” In this case, the Court has not identified Lyft as the “prevailing party” (Dkts.
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`212, 334), and Lyft has no legal basis to hold itself out as the “prevailing party.” Lyft has done
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`nothing to change the fact that it is not the “prevailing party.” Lyft has been aware of the Court’s
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`findings in the Report and Recommendation since November 10, 2021. If Lyft had intended to
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`seek costs and fees in a timely manner, it could have moved for reconsideration of the Report and
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`Recommendation. Lyft failed to do so, and it has thus waived any rights to obtain the predicate
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`findings to request costs and fees.
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`The parties have conferred and are at an impasse requiring the Court’s intervention. In
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`response to Lyft’s request for costs, AGIS promptly notified Lyft that it had no legal basis for
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`requesting costs and fees because it had not been identified as the “prevailing party” and because
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`the action had been dismissed “without prejudice.” Dkt. 334 (adopting Dkt. 212 at 14). Two days
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`later, (on the February 2, 2022 deadline for which Lyft seeks an extension), Lyft responded with
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`an identification of two cases to show that defendants can be deemed a “prevailing party”: 1) CRST
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`Van Expedited, Inc. v. EEOC, 578 U.S. 419 (2016), and 2) B.E. Tech., L.L.C. v. Facebook, Inc.,
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`940 F.3d 675 (Fed. Cir. 2019). Neither case provides a legal basis for Lyft to request costs and
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`fees when it has not been specifically identified as a prevailing party.
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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
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`defendant as a “prevailing party” and specifically invited the defendant to request costs after
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`3
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`the agency. CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 427 (2016) (“The District Court
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`then dismissed the suit, held that CRST is a prevailing party, and invited CRST to apply for
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`attorney’s fees.”). Such facts do not exist here. There has been no such finding by the Court in
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`this action. The Court did not identify any “prevailing party,” and the Court dismissed the case
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`“without prejudice.” Dkt. 334 (adopting Dkt. 212 at 14).
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`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). Again, both of these cases involved a specific
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`set of circumstances in which the district court’s order identified a party as the “prevailing party.”
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`Such facts do not exist here.
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`The Court should not endorse the applicability of this deadline to Lyft because it is not a
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`“prevailing party.” Confronted with this shortcoming, Lyft expressly declines to address the
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`question of whether it is a “prevailing party” and refuses to compare the instant facts to the
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`circumstances of the cases it contends support its Motion. These two cases, CRST and B.E. Tech,
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`involve exceptional circumstances where the district court specifically identified a defendant as a
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`“prevailing party.” Those specific identifications invited the defendants to request costs and fees.
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`It is undisputed that there are no such facts here. Lyft’s refusal to address the shortcoming of its
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`own situation improperly shifts the burden of demonstrating good cause to the Court. The Court
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`should decline to do the work for Lyft.
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`In its Reply (Dkt. 358) to its initial motion (Dkt. 356), Lyft confirms that it lacks sufficient
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`good cause required to receive relief under this Motion. Rather than explain the applicability of
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`the deadline for which it seeks an extension, Lyft “defer[s] until the appropriate time to provide a
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`4
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`fulsome analysis” and shifts the burden onto the Court to analyze the cases to find a reason to grant
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`the extension. Further, Lyft’s attempt to “correct certain mischaracterizations or inaccuracies in
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`AGIS’s Response” is limited to the simple identification of three additional cases, none of which
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`Lyft contends apply to the issue of whether Lyft can be a “prevailing party.” Dkt. 358 at 3. Lyft
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`does not compare or contrast any of the circumstances of the cases, and Lyft does not attempt to
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`distinguish AGIS’s presentation of the cases. Lyft simply waves its hand and expects the Court to
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`review the cases and make the arguments for it. Dkt. 358 at 3. The acts of filing this new Motion
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`and declaring the first motion “moot” does not cure these deficiencies.
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`In its Reply to the initial motion, Lyft does not dispute that the Report and
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`Recommendation did not identify a “prevailing party.” Dkt. 212 at 14. Disregarding that Lyft was
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`not declared a “prevailing party” in this action, Lyft generally alleges that Defendant can seek
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`costs and fees as a prevailing party. Dkt. 358 at 3. But whether the district court can ever find
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`defendants to be prevailing parties is not the issue before the Court. The question is whether Lyft
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`is the prevailing party in this case. Lyft 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. In its Reply to the
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`initial motion (Dkt. 358), Lyft does not dispute that CRST involves “exceptionally rare
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`circumstances” where an agency “wholly abandoned its statutory duties” to investigate and
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`conciliate the claims of class members in a Title VII employment discrimination action. Lyft does
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`not dispute that, in CRST, the district court specifically identified the defendant as a “prevailing
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`5
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`party” and specifically invited the defendant to request costs after the agency. CRST Van
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`Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 427 (2016) (“The District Court then dismissed the suit,
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`held that CRST is a prevailing party, and invited CRST to apply for attorney’s fees.”). Further,
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`Lyft does not dispute that, 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). Lyft does not dispute that both of
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`these cases involve a specific finding in the district court’s order identifying a particular
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`“prevailing party.” Other than generally showing that a defendant can be a prevailing party, Lyft
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`provides no authority to show that it can proceed with its request for costs and fees without being
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`declared a prevailing party on a motion denied without prejudice. Dkts. 356, 358, and 361.
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`Lyft’s request is also untimely. Lyft has waived its right to object to the Court’s findings
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`in this action or to request any sort of modification necessary to be declared a “prevailing party”
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`in order to seek costs and fees. Lyft has been aware of the Court’s Report and Recommendation
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`since November 10, 2021 and has not sought reconsideration for any part of the Court’s findings.
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`This request and any future late attempt to request additional findings would be untimely.
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`In its Reply to the initial motion, Lyft does not dispute that Plaintiff filed a timely motion
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`for reconsideration (Dkt. 258) and that Lyft did not file a motion for reconsideration on any
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`grounds. Dkt. 358. Lyft does not dispute that it has been aware of the Court’s findings in the
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`Report and Recommendation since November 10, 2021. Dkt. 358. Besides conclusory hand-
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`waving (Dkt. 358 at 4), Lyft provides no factual or legal basis to show that Lyft has not waived
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`any rights to obtain the predicate findings necessary to request costs and fees.
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`6
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`In any event, 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).” Lyft has not shown otherwise because such facts do not exist in this case. Lyft knows of
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`the absence of the required facts, and the Court should not permit Lyft to waste the parties’ and
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`the Court’s resources in addressing these two motions.
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`In order to minimize the importance of deciding the threshold issue of whether Lyft is a
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`prevailing party, Lyft submits that the parties are “currently” meeting and conferring and that such
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`ongoing discussions may “avoid an immediate need for this Court to provide a decision on the
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`merits of this issue.” AGIS disagrees with this characterization. AGIS has made its position clear:
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`Lyft cannot request costs because it is not the prevailing party, and the Court ordered the case
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`dismissed without prejudice. Certain discussions have occurred in the context of Lyft’s initial
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`request to enter certain discovery from the EDTX case to the NDCA case. In an attempt to
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`compromise and given that the EDTX case was dismissed after the close of fact discovery and
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`expert discovery, AGIS proposed that both parties stipulate to deem entered the EDTX discovery
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`in the NDCA case without the need to conduct further discovery. Given the cost savings of
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`eliminating discovery in NDCA for both parties, AGIS proposed that this stipulation should moot
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`Lyft’s request for costs sought in the EDTX case. Lyft rejected AGIS’s proposal and made clear
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`that Lyft will continue to pursue costs under any event, even when it has not been found to be the
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`“prevailing party.”2
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`2 AGIS notes that on January 28, 2022, the Northern District of California granted AGIS’s motion
`to dismiss Lyft’s declaratory-judgment complaint for lack of personal jurisdiction. Lyft Inc. v.
`AGIS Software Development LLC, Case No. 21-cv-04653-BLF, Dkt. 61 (N.D. Cal., January 28,
`2022). In that case, the Court “agree[d] with AGIS Software” and found that “Lyft has not alleged
`enough facts to indicate that this case involves a situation similar to the one in Trimble” which
`“involved a very specific set of facts.” Id. at 5-6. The Court found that “Lyft can only generally
`allege licensing negotiations between AGIS Software and California companies” and that “Lyft
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`7
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`Because the Court did not identify any “prevailing party” and because Court dismissed the
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`case “without prejudice,” the record, as it stands, identifies no prevailing party. Dkt. 334 (adopting
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`Dkt. 212 at 14). In the absence of a “prevailing party,” the deadlines for costs and fees do not
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`apply to Lyft. Further, Lyft cannot demonstrate that it has been diligent and timely in obtaining
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`the predicate findings to obtain the requested relief or that its request is being made in good faith.
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`Lyft has no excuse for its belated attempt to dispute the Court’s findings. Permitting Lyft to
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`proceed on this path of filing motion after motion is unfair and prejudicial to AGIS because it
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`seeks relief on bases that contravene the law and this 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) and
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`Opposed Motion for Further Extension of Time to File Bill of Costs and Motion for Fees (Dkt.
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`361).
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`has failed to meet its burden of showing that AGIS Software purposefully directed its activities at
`residents of the forum based on Trimble.” Id. at 5-6. The Court also rejected Lyft’s alter ego theory
`finding that “Lyft has alleged minimal facts. . .not sufficient to meet Lyft’s burden for showing
`that AGIS Software, AGIS, Inc., and AGIS Holdings had a unity of interest.” Id. at 7-8. Under
`Lyft’s interpretation of “prevailing party” and in view of the numerous deficiencies in Lyft’s
`declaratory judgment complaint, AGIS may now request costs and attorney fees for that case.
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`Lyft submits irrelevant and unfounded “obstructionist” allegations related to the NDCA case. To
`date, Lyft has not filed any amended complaint in the NDCA case. In January 2022, Lyft proposed
`filing an amended complaint containing protected material subject to the protective order in the
`EDTX case, which restricts use of the protected materials to this action and prohibits the use of
`protected material for any other purpose. Dkt. 96 at 8. AGIS had an obligation under this
`protective order to timely inform Lyft of the potential violation, and it did so. AGIS has offered
`to review a list of the protected material Lyft intends to use for any amended complaint, and Lyft
`has not provided the list.
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`8
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`Dated: February 17, 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
`
`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
`
`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
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`9
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 17, 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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