Case 2:21-cv-00072-JRG-RSP Document 63 Filed 05/25/21 Page 1 of 16 PageID #: 1203
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`v.
`
`
`T-MOBILE USA, INC., and T-MOBILE US,
`INC.,
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`v.
`
`
`LYFT, INC.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`
`v.
`
`Case No. 2:21-CV-00072-JRG-RSP
`(Lead Case)
`
`Case No. 2:21-CV-00024-JRG-RSP
`(Member Case)
`
`Case No. 2:21-CV-00026-JRG-RSP
`(Member Case)
`
`Case No. 2:21-CV-00029-JRG-RSP
`(Member Case)
`
`
`UBER TECHNOLOGIES, INC. d/b/a UBER.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`v.
`
`
`WHATSAPP, INC.,
`
`
`
`
`
`DEFENDANT WHATSAPP’S MOTION TO DISMISS FIRST AMENDED COMPLAINT
`FOR IMPROPER VENUE
`
`
`
`
`
`
`

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`Case 2:21-cv-00072-JRG-RSP Document 63 Filed 05/25/21 Page 2 of 16 PageID #: 1204
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`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`INTRODUCTION ...............................................................................................................1
`
`STATEMENT OF ISSUES TO BE DECIDED ..................................................................2
`
`III.
`
`FACTUAL BACKGROUND ..............................................................................................2
`
`A.
`B.
`C.
`
`Plaintiff AGIS Software ...........................................................................................2
`Defendant WhatsApp ...............................................................................................3
`Procedural History ...................................................................................................4
`
`IV.
`
`V.
`
`LEGAL STANDARD ..........................................................................................................5
`
`ARGUMENT .......................................................................................................................5
`
`A. WhatsApp Does Not Reside in this District ............................................................5
`B. WhatsApp Does Not Have A “Regular and Established Place of Business”
`In This District .........................................................................................................6
`1.
`The Like Way Data Center is not located in this District ............................6
`2.
`The INAP Data Center is not a regular and established place of
`business of WhatsApp..................................................................................8
`Plaintiff’s other allegations cannot establish venue ...................................11
`
`3.
`
`VI.
`
`CONCLUSION ..................................................................................................................11
`
`
`
`
`i
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`

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`Case 2:21-cv-00072-JRG-RSP Document 63 Filed 05/25/21 Page 3 of 16 PageID #: 1205
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`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`Page(s)
`
`Adaptix, Inc. v. HTC Corp.,
`937 F. Supp. 2d 867 (E.D. Tex. 2013) .......................................................................................9
`
`Advanced Ground Info. Sys., Inc. v. Life360, Inc.,
`No. 9:14-cv-80651-DMM, Dkt. 32 (S.D. Fla. July 11, 2014) ...................................................2
`
`In re Cray Inc.,
`871 F.3d 1355 (Fed. Cir. 2017)..............................................................................................5, 6
`
`In re EMC Corp.,
`501 Fed. Appx. 973 (Fed. Cir. 2013) .........................................................................................9
`
`Godo Kaisha IP Bridge 1 v. Intel Corp.,
`Case No. 2:17-cv-00676-RWS-RSP, 2018 WL 5728524 (E.D. Tex. Aug. 28, 2018) ...............9
`
`In re Google LLC,
`949 F.3d 1338 (Fed. Cir. 2020)................................................................................................10
`
`Hoffman v. Blaski,
`363 U.S. 335 (1960) ...................................................................................................................9
`
`Life360, Inc. v. Advanced Ground Information Systems, Inc.,
`No. 5:15-cv-00151-BLF, Dkt. 19 (N.D. Cal. Mar. 18, 2015) ....................................................2
`
`Personal Audio, LLC v. Google, Inc.,
`280 F. Supp. 3d 922 (E.D. Tex. 2017) ...............................................................................5, 8, 9
`
`Sanofi-Aventis v. Synthon Holding BV,
`No. 1:07-cv-00086, 2008 WL 819295 (M.D.N.C. Mar. 20, 2008)............................................8
`
`TC Heartland LLC v. Kraft Foods Group Brands LLC,
`137 S.Ct. 1514 (2017) ................................................................................................................5
`
`ZTE (USA) Inc. v. AGIS Software Development, LLC,
`No. 4:18-cv-06185-HSG, Dkt. 30 (N.D. Cal. Jan. 11, 2019) ................................................2, 3
`
`STATUTES
`
`28 U.S.C. § 1400(b) ............................................................................................................... passim
`
`28 U.S.C. § 1406(a) .........................................................................................................................5
`
`ii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 63 Filed 05/25/21 Page 4 of 16 PageID #: 1206
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`Fed. R. Civ. P. 12(b)(3)....................................................................................................................1
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`RULES
`
`
`
`
`
`iii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 63 Filed 05/25/21 Page 5 of 16 PageID #: 1207
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`Defendant WhatsApp LLC1 (“WhatsApp” or “Defendant”) respectfully moves the Court
`
`to dismiss this action for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3).2
`
`I.
`
`INTRODUCTION
`
`Venue in this District is improper for this action. WhatsApp neither resides in this judicial
`
`district, nor maintains a regular and established place of business in this District, as required by 28
`
`U.S.C. § 1400(b). WhatsApp is not incorporated in Texas. Neither WhatsApp nor its parent
`
`company Facebook, Inc. (“Facebook”) own, lease, or rent any property, facilities, or equipment in
`
`this District. There are no WhatsApp or Facebook employees who work at any facility located in
`
`this District, and no WhatsApp or Facebook servers within this District. Neither WhatsApp nor
`
`Facebook conducts any business from a regular and established place in this District.
`
`In its First Amended Complaint (“FAC”), Plaintiff alleges venue based on a data center
`
`owned by Facebook and a second data center owned by Internap (“INAP”). But the Facebook
`
`data center is located in Tarrant County, which is part of the Northern District of Texas and not
`
`part of this judicial district. And the INAP data center in Plano, Texas is not a regular and
`
`established place of business of WhatsApp or Facebook. First and foremost, neither WhatsApp
`
`nor Facebook leased any space in, or otherwise used, the INAP data center at the time this suit was
`
`filed. Although the INAP data center previously provided colocation services to Facebook, that
`
`agreement was terminated years ago and all Facebook equipment that resided at the INAP data
`
`center was removed from that facility by April 2018. Facebook has not used the INAP data center
`
`
`1 WhatsApp, Inc. is incorrectly named in the FAC.
`2 On April 27, 2021, WhatsApp filed a Complaint for Declaratory Judgment against AGIS
`Software Development LLC in the Northern District of California. On May 18, 2021, a second
`company, Smith Micro Software, Inc., also filed a complaint seeking declaratory judgment of
`noninfringement and invalidity against AGIS Software Development LLC in the Northern District
`of California.
`
`1
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`

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`or any other facility in the Eastern District of Texas since that time. Second, the INAP data center
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`is owned by a third party, and neither WhatsApp nor Facebook maintained any regular, physical
`
`employee presence at the INAP data center. Third, Facebook only housed equipment at the INAP
`
`data center; neither WhatsApp nor Facebook ever conducted business from the INAP data center.
`
`Thus, the INAP data center has never been, and is certainly not now, a regular and established
`
`place of business of WhatsApp or Facebook.
`
`Accordingly, venue in this District is improper and the case should be dismissed.
`
`II.
`
`STATEMENT OF ISSUES TO BE DECIDED
`
`Issue No. 1: Has AGIS Software Development, LLC met its burden of establishing that
`
`venue is proper in this District under 28 U.S.C. § 1400(b) when WhatsApp is a Delaware
`
`corporation that does not reside, and has no regular and established place of business, in the Eastern
`
`District of Texas?
`
`III.
`
`FACTUAL BACKGROUND
`
`A.
`
`Plaintiff AGIS Software
`
`Advanced Ground Information Systems, Inc. (“AGIS, Inc.”) was founded in 2004 to
`
`develop location-based communication software. Advanced Ground Info. Sys., Inc. v. Life360,
`
`Inc., No. 9:14-cv-80651-DMM, Dkt. 32 at 2 (S.D. Fla. July 11, 2014) (“Life360-Florida”).
`
`Incorporated in the state of Florida, its principal place of business is in Jupiter, Florida, where it
`
`has been located for more than a decade. Life360, Inc. v. Advanced Ground Information Systems,
`
`Inc., No. 5:15-cv-00151-BLF, Dkt. 19 at 2 (N.D. Cal. Mar. 18, 2015). Its Chief Executive Officer
`
`and the named inventor of the Patents-in-Suit, Malcolm Beyer, also resides in Florida. Id.; see
`
`also ZTE (USA) Inc. v. AGIS Software Development, LLC, No. 4:18-cv-06185-HSG, Dkt. 30 at 4
`
`(N.D. Cal. Jan. 11, 2019) (“ZTE-California”).
`
`2
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`

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`In 2017, AGIS, Inc. underwent a corporate restructuring, forming AGIS Holdings, Inc.
`
`(“AGIS Holdings”) and plaintiff AGIS Software Development, LLC (“AGIS Software” or
`
`“Plaintiff”). ZTE-California, Dkt. 43-21, 43-7, ¶ 7. AGIS, Inc. and AGIS Software became
`
`subsidiaries of AGIS Holdings, and the Patents-in-Suit were assigned to AGIS Software. Id.
`
`B.
`
`Defendant WhatsApp
`
`Defendant WhatsApp is the developer of a free, secure, reliable messaging service that
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`allows users to send text and voice messages, make voice and video calls, and share photos and
`
`other content. WhatsApp and its parent Facebook are incorporated in Delaware with their principal
`
`place of business in Menlo Park, California, which is located in the Northern District of California.
`
`Davis Decl.,3 ¶ 3.
`
`Neither WhatsApp nor Facebook has a regular and established place of business in the
`
`Eastern District of Texas. There are no Facebook or WhatsApp employees who work at any
`
`facility located in the Eastern District of Texas, and no Facebook or WhatsApp servers within the
`
`Eastern District of Texas. Id., ¶ 6. Neither Facebook nor WhatsApp maintains, operates, or leases
`
`any offices, facilities, equipment or other physical locations or property in the Eastern District of
`
`Texas. Id., ¶ 6.
`
`Facebook has a data center located in Fort Worth, Texas for its servers (“Like Way Data
`
`Center”). Id., ¶ 1, 5. But the Like Way Data Center is located in Tarrant County, which is in the
`
`Northern District of Texas. Id., ¶ 5. Facebook also leases a warehouse that contains parts and
`
`equipment for the Like Way Data Center. Id., ¶ 6. But this warehouse is located at 13550 Park
`
`Vista Boulevard, Fort Worth, Texas 76177, also in Tarrant County in the Northern District of
`
`Texas. Id., ¶ 6.
`
`
`3 Declaration of Bradley Davis in Support of WhatsApp’s Motion to Dismiss (“Davis Decl.”).
`
`3
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`

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`Prior to April 2018, Facebook leased space to house servers at a data center located at 1221
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`Coit Road, Plano, Texas (“INAP Data Center”). Id., ¶ 13. That facility was owned by INAP, not
`
`by Facebook or WhatsApp. Id., ¶ 13. There were no Facebook or WhatsApp employees who
`
`maintained a regular, physical presence at the INAP Data Center, and the maintenance on the
`
`servers was performed by either INAP employees or other contract workers, or by Facebook
`
`employees who traveled to the INAP Data Center from their place of business in other districts.
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`Id., ¶ 14. Facebook terminated its contract with the INAP Data Center and removed all Facebook
`
`equipment from that location by April 2018. Id., ¶ 15.
`
`C.
`
`Procedural History
`
`On January 29, 2021, AGIS filed this patent infringement lawsuit against WhatsApp in the
`
`Eastern District of Texas alleging venue based on the Like Way Data Center (and taxes paid to
`
`Denton County based on the Like Way Data Center), as well as employee “hubs” in Plano and
`
`Allen. Dkt. 1. WhatsApp moved to dismiss for improper venue on April 27, 2021. Dkt. 34.
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`WhatsApp explained, with evidentiary support, that the Like Way Data Center is located wholly
`
`in Tarrant County in the Northern District of Texas, and that the identified taxes go to the
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`Northwest Independent School District, which spans both Denton County in East Texas and
`
`Tarrant County in North Texas. Id. at 5-7. WhatsApp further stated that neither WhatsApp nor
`
`Facebook have any employees working at any facility in Plano, Allen, or elsewhere in the Eastern
`
`District of Texas. Id. at 7. In response, AGIS filed its FAC on May 11, 2021. Dkt. 47. The FAC
`
`continued to allege venue based on the Like Way Data Center and “hubs” in Plano and Allen,
`
`changing nothing in response to the evidence submitted with WhatsApp’s original motion other
`
`than to include a map that Tarrant County expressly states is not guaranteed to be accurate. FAC,
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`¶ 6. The FAC also alleged venue based on the INAP Data Center. FAC, ¶¶ 5-7. As discussed
`
`below, none of these allegations establish proper venue in this District.
`
`4
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`

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`IV.
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`LEGAL STANDARD
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`Venue is proper only where (1) the defendant resides, or (2) where the defendant has
`
`committed acts of infringement4 and has a regular and established place of business. 28 U.S.C. §
`
`1400(b). For the first prong, a domestic corporation resides only in its state of incorporation. TC
`
`Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct. 1514, 1520 (2017). To satisfy the
`
`second prong, “(1) there must be a physical place in the district; (2) it must be a regular and
`
`established place of business; and (3) it must be the place of the defendant.” In re Cray Inc., 871
`
`F.3d 1355, 1360 (Fed. Cir. 2017). “If any statutory requirement is not satisfied, venue is improper
`
`under § 1400(b).” Id. Where venue is improper, a court may dismiss the case. 28 U.S.C. §
`
`1406(a). It is AGIS’s burden of proof to establish venue and “the venue facts are to be examined
`
`as of the date the suit is filed.” Personal Audio, LLC v. Google, Inc., 280 F. Supp. 3d 922, 924
`
`(E.D. Tex. 2017).
`
`V.
`
`ARGUMENT
`
`A. WhatsApp Does Not Reside in this District
`
`In TC Heartland, the Supreme Court held that under the patent venue statute § 1400(b), a
`
`defendant “resides” only in its state of incorporation. 137 S.Ct. at 1517; see also 28 U.S.C. §
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`1400(b). WhatsApp does not reside in this District because it is incorporated in Delaware, not
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`Texas. Davis Decl., ¶ 3. As a matter of law, there is no basis for venue in this District under the
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`first prong of the patent venue statute.
`
`
`4 WhatsApp also denies that it has committed any acts of infringement in this District or elsewhere.
`But given that it neither resides nor has a regular and established place of business in this District,
`the Court need not reach this issue.
`
`5
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`

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`B. WhatsApp Does Not Have A “Regular and Established Place of Business” In
`This District
`
`In In re Cray, the Federal Circuit held that there are three requirements to satisfy the second
`
`prong under the patent venue statute: “(1) there must be a physical place in the district; (2) it must
`
`be a regular and established place of business; and (3) it must be the place of the defendant.” 871
`
`F.3d at 1360. But WhatsApp and Facebook do not have a physical location in this District. Davis
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`Decl., ¶ 4. WhatsApp and Facebook do not own, lease, or rent any property, facilities, or
`
`equipment that could constitute a physical location in this District. Id., ¶ 6. Nor does WhatsApp
`
`or Facebook have any employees that work from a physical location that would constitute a place
`
`of business in this District. Id., ¶ 6.
`
`1.
`
`The Like Way Data Center is not located in this District
`
`AGIS alleges that “[t]he Like Way data center is a physical location of WhatsApp in this
`
`District.” FAC, ¶ 5. This is incorrect. The data center at 4500 Like Way, Fort Worth, Texas
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`76177 is located wholly within in Tarrant County in the Northern District of Texas. Davis Decl.,
`
`¶ 5. In particular, Tarrant County public records show deeds affiliated with the tract of the land
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`on which the Like Way Data Center is located. See Exs. A-C, Tarrant County Official Records
`
`Search, https://tarrant.tx.publicsearch.us/. The deeds filed on June 12, 2015, December 22, 2015,
`
`and April 22, 2016 collectively show the tract of land of the Like Way Data Center is located solely
`
`in Tarrant County. Id. Additionally, on April 18, 2017, Todd A. Bridges, a Registered
`
`Professional Land Surveyor in the State of Texas certified that the land plat he surveyed accurately
`
`represents the land on which the Like Way Data Center is located. Ex. D. The land plat was
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`officially recorded with Tarrant County on May 22, 2017, with Instrument Number D217113414,
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`showing the Like Way Data Center is located solely within Tarrant County. Id. Further, the
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`Tarrant Appraisal District includes the Like Way Data Center as a property located in Tarrant
`
`6
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`

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`County, not Denton County. See Ex. E, Tarrant Appraisal District Property Search,
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`https://www.tad.org/property/14401610/. Thus, the Like Way Data Center is located wholly in
`
`Tarrant County, which is in the Northern District of Texas.
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`AGIS ignores the actual land plat that WhatsApp submitted in its motion to dismiss the
`
`original complaint. Dkt. 34-4. Instead, AGIS introduces a new map which it claims constitute
`
`“property records for Tarrant County [that] reveal that the Like Way data center is located in both
`
`Tarrant County and Denton County.” FAC, ¶ 6. But this “public map viewer” states that “this
`
`map was prepared by Tarrant County for general reference purposes only” and explicitly contains
`
`a warning that “Tarrant County does not guarantee the correctness or accuracy of any features on
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`[its] map.” Davis Decl., ¶ 9, Ex. 3. Further, the website source of the “public map viewer” also
`
`directs users to the Tarrant County website, which links to a “Tarrant Appraisal District” map. Id.,
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`¶ 10. The “Tarrant Appraisal District” map itself provides a surveyed map of the property which
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`confirms that the Like Way Data Center is located entirely in Tarrant County in the Northern
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`District of Texas. Id., ¶¶ 11-12, Exs. 4-5.
`
`AGIS also alleges that “WhatsApp pays taxes in the District to Denton County for its Like
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`Way data center.” FAC, ¶ 6. Again, this is incorrect. WhatsApp pays taxes that go to the
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`Northwest Independent School District (“NISD”) for the Like Way Data Center in the Northern
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`District of Texas. Davis Decl., ¶ 7. These taxes are merely collected by Denton County as the
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`designated tax collector of the NISD. Id., ¶ 8. The Tarrant Appraisal District shows that the Like
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`Way Data Center falls within the jurisdiction of the NISD. See Ex. E, Tarrant Appraisal District
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`Property Search, https://www.tad.org/property/14401610/. NISD encompasses Tarrant County,
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`Wise County, and Denton County, and all property owners located in NISD pay property taxes
`
`that NISD collects. The Denton County Tax Assessor/Collector handles all of the NISD tax
`
`7
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`collections. See Ex. F, Tax Information, https://www.nisdtxbond.org/tax-info (“The Denton
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`County Tax Assessor/Collector, who handles all of NISD tax collections, issued amended tax
`
`statements at that time to reflect the adjusted M&O rate.”); see also Ex. G, Denton County Tax
`
`Assessor
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`to Issue Amended Tax Statements, https://www.nisdtx.org/news/what_s_new/
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`tax_assessor_to_issue_amended_tax_statements. Any taxes paid to Denton County reflect the
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`taxes collected on behalf of NISD for the property located in Tarrant County. These taxes were
`
`not, and are not, paid for any property located in Denton County—real or personal.
`
`To establish venue, AGIS must show WhatsApp paid taxes for real property located in the
`
`Eastern District of Texas. Taxes paid in the Eastern District of Texas for any reason other than for
`
`real property located there is legally insufficient to establish venue. See Personal Audio, LLC v.
`
`Google, Inc., 280 F. Supp. 3d 922, 932-33 (E.D. Tex. 2017) (holding that paying taxes on personal
`
`property in the Eastern District of Texas does not establish a “regular and established place of
`
`business” there because the test is real property located in the district); see also Sanofi-Aventis v.
`
`Synthon Holding BV, No. 1:07-cv-00086, 2008 WL 819295, at *3-5 (M.D.N.C. Mar. 20, 2008)
`
`(holding that paying property tax on furniture was insufficient to establish venue in the judicial
`
`district). Thus, the taxes paid to Denton County for the NISD are insufficient to show a “regular
`
`and established place of business” in the Eastern District of Texas when the real property itself is
`
`located in the Northern District of Texas.
`
`2.
`
`The INAP Data Center is not a regular and established place of
`business of WhatsApp
`
`In its FAC, AGIS alleges for the first time that WhatsApp maintains a regular and
`
`established place of business at 1221 Coit Road in Plano, Texas, which AGIS refers to as the “BPP
`
`8
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`at Internap Data Center.”5 Unlike the Like Way Data Center, the INAP Data Center is actually
`
`located in the Eastern District of Texas, in Collin County. But AGIS cannot establish venue based
`
`on the INAP Data Center for three reasons.
`
`First, the INAP Data Center cannot provide a basis for venue because neither Facebook
`
`nor WhatsApp has used the INAP Data Center for years—and certainly not at the time of the filing
`
`of the January 2021 complaint in this case. Davis Decl., ¶ 16. “[V]enue facts are to be examined
`
`as of the date the suit is filed.” Personal Audio, 280 F. Supp. 3d at 924; see also Godo Kaisha IP
`
`Bridge 1 v. Intel Corp., Case No. 2:17-cv-00676-RWS-RSP, 2018 WL 5728524, at *2 (E.D. Tex.
`
`Aug. 28, 2018) (“Courts determine venue under § 1400(b) by the facts and situation as of the date
`
`the suit is filed.”); Adaptix, Inc. v. HTC Corp., 937 F. Supp. 2d 867, 872 (E.D. Tex. 2013) (“[T]he
`
`relevant inquiry is whether jurisdiction and venue existed at the time this action was filed.” (citing
`
`Hoffman v. Blaski, 363 U.S. 335, 343 (1960)); cf. In re EMC Corp., 501 Fed. Appx. 973 (Fed. Cir.
`
`2013) (“Motions to transfer venue are to be decided based on ‘the situation that existed when suit
`
`was instituted.’” (quoting Hoffman, 363 U.S. at 343)). Because Facebook ceased its use of the
`
`INAP Data Center by April 2018—years before the present suit was filed—Facebook’s prior use
`
`of that data center cannot establish venue.
`
`Second, the INAP Data Center was not a regular and established business of WhatsApp (or
`
`Facebook). The INAP Data Center is owned by INAP, and is not and was never owned by
`
`WhatsApp or Facebook. Davis Decl., ¶ 13. AGIS’s only allegations in the FAC on this issue are
`
`that the INAP Data Center “has employees physically located and working in the District.” FAC,
`
`¶ 7. But nowhere does AGIS allege that these employees were WhatsApp or Facebook employees.
`
`It cannot allege that because it is not true: there were no Facebook or WhatsApp employees who
`
`
`5 Internap is the former name for the current data center company known as INAP.
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`9
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`maintained a regular, physical presence at the INAP Data Center. Davis Decl., ¶ 14. To the extent
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`that any WhatsApp or Facebook employee performed any maintenance on servers located at the
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`INAP Data Center, these employees traveled to Plano from where they regularly worked outside
`
`the district. Id.
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`Third, the INAP Data Center is not a place of business of WhatsApp or Facebook—i.e.,
`
`there is no “regular, physical presence” of an employee or agent conducting WhatsApp’s or
`
`Facebook’s business from the INAP Data Center. In re Google LLC, 949 F.3d 1338, 1345 (Fed.
`
`Cir. 2020). And the employees at the INAP Data Center at most only provided general
`
`maintenance of the Facebook servers it was hosting. Davis Decl., ¶ 14. Because neither WhatsApp
`
`nor Facebook had any employees who conducted business from the INAP Data Center, and
`
`because the INAP employees at the INAP Data Center only maintained Facebook’s servers, this
`
`data center was not a “regular and established place of business” of WhatsApp or Facebook.
`
`Indeed, the Federal Circuit considered the same material facts in In re Google, 949 F.3d
`
`1338 (Fed. Cir. 2020). There, Google used a third party to host servers in the Eastern District,
`
`servers provisioned for inbound and outbound network traffic. In re Google, 949 F.3d at 1340.
`
`Google—like WhatsApp here—did not own the building, did not have employees at the facility,
`
`and used the facility’s employees primarily for network provisioning, installation, and
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`maintenance. Id. The Federal Circuit held that these actions by the third party for the benefit of
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`Google did not create agency such that the facility was transformed into a place of business of
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`Google, especially when the accused product was the online services provided by Google, not the
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`equipment maintained at the facility. Id. at 1345-47 (citing Restatement (Third) of Agency § 1.01
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`cmt. f (1)). The same is true here—the act of maintaining Facebook servers cannot transform the
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`Case 2:21-cv-00072-JRG-RSP Document 63 Filed 05/25/21 Page 15 of 16 PageID #: 1217
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`INAP Data Center into a place of business for WhatsApp when the accused feature is sharing “Live
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`Location” on WhatsApp.
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`Thus, the INAP Data Center used by Facebook prior to April 2018 cannot establish venue
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`in the Eastern District of Texas.
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`3.
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`Plaintiff’s other allegations cannot establish venue
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`AGIS Software further alleges that WhatsApp has physical addresses at two locations in
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`Austin, Texas. FAC, ¶ 8. These locations are physically located within Travis County in the
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`Western District of Texas, not the Eastern District of Texas; AGIS does not allege otherwise.
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`AGIS also alleges “on information and belief” that “WhatsApp has a hub for employees physically
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`located and working in the District, such as in Plano, Texas and Allen, Texas.” FAC, ¶ 8. AGIS
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`provides no basis for this allegation. Regardless, WhatsApp does not have a “hub for employees”
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`in Plano or Allen, nor anywhere else in the Eastern District of Texas. Davis Decl., ¶ 17.
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`Venue over WhatsApp is improper in this district under Section 1400(b), and AGIS cannot
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`allege facts that establish otherwise.
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`VI. CONCLUSION
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`For the foregoing reasons, WhatsApp respectfully requests that the Court dismiss this case
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`for improper venue.
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`
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`Case 2:21-cv-00072-JRG-RSP Document 63 Filed 05/25/21 Page 16 of 16 PageID #: 1218
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`Date: May 25, 2021
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`
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`Respectfully submitted,
`
`/s/ Lisa K. Nguyen, with permission by
`Michael E. Jones
`
`Michael E. Jones
`SBN: 10929400
`Patrick C. Clutter
`SBN: 24036374
`POTTER MINTON, PC
`110 North College, Suite 500
`Tyler, Texas 75702
`Tel: 903-597-8311
`Fax: 903-593-0846
`mikejones@potterminton.com
`patrickclutter@potterminton.com
`
`Lisa K. Nguyen
`Richard G. Frenkel
`Clara Wang
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025-1008
`Tel: (650) 328-4600 / Fax: (650) 463-2600
`lisa.nguyen@lw.com
`rick.frenkel@lw.com
`clara.wang@lw.com
`
`Tiffany C. Weston
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`Tel: (202) 637-2200 / Fax: (202) 637-2201
`tiffany.weston@lw.com
`
`Attorneys for Defendant WhatsApp LLC
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`12
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`