Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 1 of 34 PageID #: 1584
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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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`
`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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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE
`IN OPPOSITION TO DEFENDANT LYFT, INC.’S
`MOTION TO DISMISS FOR IMPROPER VENUE (DKT. 30)
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`
`Case No. 2:21-cv-00024-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`Defendants.
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`Defendant.
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`LYFT, INC.,
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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 2 of 34 PageID #: 1585
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`TABLE OF CONTENTS
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`Page(s)
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`I.
`
`II.
`
`INTRODUCTION .............................................................................................................. 1
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`RESPONSE TO STATEMENT OF ISSUES ..................................................................... 2
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`III.
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`BACKGROUND ................................................................................................................ 2
`
`A.
`
`B.
`
`C.
`
`D.
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`Plaintiff AGIS Software Development LLC and its Related Entities..................... 2
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`Defendant’s Connections to the Eastern District of Texas ..................................... 4
`
`Procedural History .................................................................................................. 5
`
`This Court’s Experience with the Patents-in-Suit ................................................... 5
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`LEGAL STANDARD ......................................................................................................... 7
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`ARGUMENT ...................................................................................................................... 8
`
`A.
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`Venue is Proper in this District ............................................................................... 8
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`IV.
`
`V.
`
`1.
`
`2.
`
`3.
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`Lyft Has Regular and Established Places of Business in this
`District......................................................................................................... 9
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`Lyft’s Express Drive Location and Lyft Drivers are Regular and
`Established Places of Business “of Lyft”.................................................. 11
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`Venue with Respect to the ’838 Patent is Proper in This District ............ 16
`
`B.
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`Venue Discovery is Warranted ............................................................................. 20
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`VI.
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`IN THE EVENT THE COURT FINDS VENUE IMPROPER AND
`TRANSFER IS WARRANTED, THIS CASE SHOULD BE TRANSFERRED
`TO WDTX ........................................................................................................................ 21
`
`A.
`
`B.
`
`C.
`
`D.
`
`Relative Ease of Access to Sources of Proof Favors WDTX Over NDCA .......... 22
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`Convenience of Witnesses Favors Transfer to WDTX Over NDCA ................... 23
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`Texas’ Interest in this Litigation Favors Transfer to WDTX Over NDCA .......... 25
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`Court Congestion Does Not Favor Transfer to NDCA ......................................... 26
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`VII. CONCLUSION ................................................................................................................. 26
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`
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`i
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`

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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 3 of 34 PageID #: 1586
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Actus, LLC v. Bank of Am. Corp.,
`No. 2-09-CV-102-TJW, 2010 WL 547183 (E.D. Tex. Feb. 10, 2010)..............................16, 17
`
`Adaptix, Inc. v. Cellco P’ship,
`No. 6:15-cv-45, Dkt. 32 (E.D. Tex. Aug. 12, 2015) ................................................................23
`
`Aerielle, Inc. v. Monster Cable Prods., Inc.,
`No. 2:06-cv-382 (TJW), 2007 WL 951639 (E.D. Tex. Mar. 26, 2007) ...................................25
`
`AGIS Software Dev. LLC v. Apple, Inc.,
`No. 2:17-CV-00516-JRG, 2018 WL 2721826 (E.D. Tex. June 6, 2018) ..................................6
`
`AGIS Software Dev. LLC v. HTC Corp.,
`No. 2:17-CV-00514-JRG, 2018 WL 4680557 (E.D. Tex. Sept. 28, 2018) ...............................6
`
`AGIS Software Dev. LLC v. HTC Corp.,
`No. 2:17-CV-00514-JRG, 2018 WL 4680558 (E.D. Tex. Sept. 28, 2018),
`reconsideration denied, No. 2:17-CV-00514-JRG, 2019 WL 8198620 (E.D.
`Tex. Feb. 22, 2019) ....................................................................................................................6
`
`AGIS Software Dev. LLC v. Huawei Device USA Inc.,
`No. 2:17-CV-00513-JRG, 2018 WL 2329752 (E.D. Tex. May 23, 2018) ..........................6, 25
`
`AGIS Software Dev., LLC v. ZTE Corp.,
`No. 2:17-CV-00517-JRG, 2018 WL 4854023 (E.D. Tex. Sept. 28, 2018) ...............................6
`
`Aloft Media, LLC v. Adobe Sys. Inc.,
`No. 6:07-cv-355, 2008 WL 819956 (E.D. Tex. Mar. 25, 2008) ..............................................25
`
`Alpine View Co. v. Atlas Copco AB,
`205 F.3d 208 (5th Cir. 2000) ...................................................................................................20
`
`Ambraco, Inc. v. Bossclip B.V.,
`570 F.3d 233 (5th Cir. 2009) .....................................................................................................7
`
`Andra Grp. v. Victoria’s Secret Stores, LLC,
`No. 4-19-cv-288-ALM-KPJ, 2020 WL 1465894 (E.D. Tex. Mar. 26, 2020) ..........................13
`
`Blitzsafe Texas LLC v. Mitsubishi Elec. Corp.,
`No. 2:17-cv-00430-JRG, 2019 WL 2210686 (E.D. Tex. May 22, 2019) ................................20
`
`ii
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`

`

`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 4 of 34 PageID #: 1587
`
`Braspetro Oil Servs. Co. v. Modec (USA), Inc.,
`240 F. App’x 612 (5th Cir. 2007) ..............................................................................................7
`
`Cheetah Omni, LLC v. NP Photonics, Inc.,
`No. 6:13-cv-418, 2014 WL 11709437 (E.D. Tex. Mar. 28, 2014) ..........................................22
`
`In re Cordis Corp.,
`769 F.2d 733 (Fed. Cir. 1985)..................................................................................................10
`
`Core Wireless Licensing, S.A.R.L. v. Apple, Inc.,
`No. 6:12-cv-00100, 2013 WL 682849 (E.D. Tex. Feb. 22, 2013), aff’d In re
`Apple Inc., 743 F.3d 1377 (Fed. Cir. 2014) .............................................................................23
`
`In re Cray, Inc.,
`871 F.3d 1355 (Fed. Cir. 2017)........................................................................................ passim
`
`EMED Techs. Corp. v. Repro-Med Sys., Inc.,
`No. 2:17-cv-728-WCB-RSP, 2018 WL 2544564 (E.D. Tex. June 4, 2018) ...........................13
`
`Garrett v. Hanson,
`No. 2:19-cv-00307-JRG, 2019 WL 6920818 (E.D. Tex. Dec. 19, 2019) ................................21
`
`Good Kaisha IP Bridge 1 v. Broadcom Ltd.,
`No. 2:16-cv-0134-JRG-RSP, 2017 WL 750290 (E.D. Tex. Feb. 27, 2017) ............................24
`
`In re Google LLC,
`949 F.3d 1338 (Fed. Cir. 2020)........................................................................................ passim
`
`Int'l Techs. & Sys. Corp. v. Samsung Elecs. Co.,
`No. SA CV 17-1748-DOC (JDEx), 2018 WL 4963129 (C.D. Ca. June 22,
`2018) ........................................................................................................................................14
`
`Intellectual Ventures II LLC v. FedEx Corp.,
`No. 2:16-cv-980-JRG, 2017 WL 5630023 (E.D. Tex. Nov. 22, 2017) .........................9, 20, 21
`
`Invitrogen Corp. v. Gen. Elec. Co.,
`No. 6:08-cv-112, 2009 WL 331891 (E.D. Tex. Feb. 9, 2009) .................................................23
`
`Langton v. Cbeyond Commc’n, L.L.C.
`282 F. Supp. 2d 504 (E.D. Tex. 2003) .......................................................................................7
`
`Mallinckrodt IP v. B. Braun Med. Inc.,
`No. 17-365-LPS, 2017 WL 6383610 (D. Del. Dec. 14, 2017) ............................................8, 20
`
`Mangosoft Intellectual Property, Inc. v. Skype Techs. SA,
`No. 2:06-cv-390, 2007 WL 2008899 (E.D. Tex. July 5, 2007) ...............................................25
`
`iii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 5 of 34 PageID #: 1588
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`Mondis Tech. Ltd. v. Top Victory Elecs. (Taiwan) Co.,
`No. 2:08-CV-478 (TJW), 2010 WL 3025243 (E.D. Tex. July 29, 2010) ................................17
`
`Peloton Interactive, Inc. v. Flywheel Sports, Inc.,
`No. 2:18-cv-00390-RWS- RSP, 2019 WL 2303034 (E.D. Tex. May 30, 2019) .....................26
`
`Rensselaer Polytechnic Inst. V. Amazon.com, Inc.,
`1:18-cv-00549, 2019 WL 3755446 (N.D. N.Y. Aug 7, 2019) .................................................21
`
`Seven Networks, LLC v. Google LLC,
`315 F. Supp. 3d 933 (E.D. Tex. 2017) ............................................................................. passim
`
`Soverain IP, LLC v. AT&T, Inc.,
`No. 2:17-CV-00293-RWS-RSP, 2017 WL 5126158 (E.D. Tex. Oct. 31, 2017) .....................19
`
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`-- U.S. --, 137 S. Ct. 1514 (2017) ..............................................................................................7
`
`TQP Dev., LLC v. Ticketmaster Entm’t, Inc.,
`No. 2:09-CV-279-TJW, 2010 WL 1740927 (E.D. Tex. Apr. 29, 2010) ..................................17
`
`Ultravision Techs., LLC v. GoVision, LLC,
`No. 2:18-cv-00100-JRG-RSP, 2020 WL 887754 (E.D. Tex. Feb. 24, 2020) ....................21, 23
`
`Uniloc 2017 LLC v. Riot Games, Inc.,
`No. 2:19-cv-00223-JRG, 2020 WL 1158611 (E.D. Tex. Mar. 10, 2020) ..........................20, 21
`
`Uniloc USA, Inc. v. Nutanix, Inc.,
`No. 2:17-CV-00174-JRG, 2017 WL 11527109 (E.D. Tex. Dec. 6, 2017) ..............................14
`
`Vocalife LLC v. Amazon.com, Inc.,
`No. 2:19-cv-00123-JRG, 2019 WL 6345191 (E.D. Tex. Nov. 27, 2019) .........................23, 24
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ...................................................................................................22
`
`Statutes
`
`28 U.S.C. 1406(a) ............................................................................................................................2
`
`28 U.S.C. § 1400(b) .............................................................................................................7, 17, 18
`
`28 U.S.C. § 1404 ......................................................................................................................21, 22
`
`Other Authorities
`
`Fed. R. Civ. P. 12(b)(3)....................................................................................................................2
`
`
`iv
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`

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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 6 of 34 PageID #: 1589
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”), by and through its
`
`undersigned counsel, hereby submits this response in opposition to Defendant Lyft, Inc.’s
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`(“Defendant” or “Lyft”) Motion to Dismiss for Improper Venue (Dkt. 30) (the “Motion”).
`
`I.
`
`INTRODUCTION
`
`Defendant asks this Court to dismiss this action for improper venue because it (1) allegedly
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`does not maintain places of business in this District; and (2) venue is improper based on U.S.
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`Patent No. 10,341,838 (the “’838 Patent”). However, Defendant maintains numerous regular and
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`established places of business in this District.
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`First, venue is proper with respect to Defendant. Defendant maintains numerous regular
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`and established places of business in this District, including at least (1) the Lyft Express Location
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`in Plano, Texas; and (2) the numerous Lyft vehicles that offer Defendant’s products and services
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`in this District. Moreover, Lyft misstates the law regarding agency and venue, alleging that Lyft
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`must “own” any location in order for it to be a regular and established place of business in this
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`District. As discussed in greater detail below, each of these locations constitutes a regular and
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`established place of business because each is a physical place of Lyft in this District, and because
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`Lyft’s employees and/or agents conduct business from those locations. Accordingly, Defendant’s
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`motion to dismiss, or in the alternative, to transfer, should be denied.
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`Second, Defendant argues that because it allegedly does not maintain any servers in this
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`District, it cannot commit acts of infringement under the venue statute with respect to the ’838
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`Patent. However, Defendant fails to acknowledge that it relies entirely on Amazon Web Services
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`(“AWS”) servers in order to operate its products and services, including the Accused Products.
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`Moreover, this Court has found (1) not all of the alleged infringing activity needs to have occurred
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`in the District so long as some act of infringement took place there; (2) the acts of infringement
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`required to support venue need not be acts of direct infringement alone. The Court should reject
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`

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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 7 of 34 PageID #: 1590
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`Defendant’s allegation that venue is improper because (1) Defendant’s Motion is based on the
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`incorrect legal standard; (2) Defendant effectively concedes that at least one step of the ’838 Patent
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`is performed in the District; (3) Defendant ignores that Plaintiff has alleged indirect infringement
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`in the form of induced infringement and contributory infringement in the count for the ’838 Patent;
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`and (4) Defendant’s dispute amounts to an attack on the sufficiency of AGIS’s infringement
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`contentions against the ’838 Patent. Accordingly, there remain a number of disputes regarding
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`factual allegations, when taken as true, that require resolution which preclude a motion to dismiss.
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`AGIS alternatively requests that this Court permit AGIS to conduct limited venue discovery prior
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`to a determination of the Motion.
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`Lastly, Defendant argues that in the alternative, this Court should transfer this action to the
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`Northern District of California (“NDCA”). However, Defendant fails to address any factors or
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`provide any analysis showing the NDCA is more convenient than any other District. While AGIS
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`disputes that venue is improper, it submits that the Western District of Texas (“WDTX”) is more
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`convenient, as demonstrated by the analysis of the convenience factors below.
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`II.
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`RESPONSE TO STATEMENT OF ISSUES
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`The Court should decline to dismiss this action under Fed. R. Civ. P. 12(b)(3) and 28 U.S.C.
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`1406(a) for improper venue as to Lyft in this District and, in the alternative, should decline to
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`transfer this action to NDCA.
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`III. BACKGROUND
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`A.
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`Plaintiff AGIS Software Development LLC and its Related Entities
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`Malcolm K. “Cap” Beyer founded AGIS, Inc. in 2004. Ex. A, Decl. of Malcolm K. Beyer
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`Jr. (“Beyer Decl.”) ¶ 4.1 For over fifteen years, AGIS, Inc.’s primary business has revolved around
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`1 “Ex. __” refers to exhibits attached to the declaration of Vincent J. Rubino III, filed concurrently
`herewith.
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`2
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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 8 of 34 PageID #: 1591
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`offering the “LifeRing” products and solutions, which include client-based applications and a
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`server-based solution “for, generally, enabling smartphone, tablet, and PC users to easily and
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`rapidly establish secure ad hoc digital networks.” Id. ¶ 11. Various versions of LifeRing have
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`been offered and sold to military, defense, first-responder, and private military customers since
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`2004. Id. AGIS, Inc. also offers a smartphone-based emergency broadcast and response system
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`called “ASSIST,” which connects employees to a company command center and a network of
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`responders through personal smartphones. Id.
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`In 2017, Mr. Beyer and the other AGIS, Inc. shareholders formed AGIS Holdings,
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`Incorporated (“AGIS Holdings”), a Florida corporation. Id. ¶ 6. AGIS Holdings consists of two
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`subsidiaries, AGIS, Inc. and Plaintiff, AGIS. Plaintiff AGIS holds the rights, by assignment, to
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`the Asserted Patents, and licenses its patent portfolio to AGIS, Inc. Id. ¶ 7.
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`AGIS is a limited liability company organized and existing under the laws of the State of
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`Texas, with a principal place of business at 100 W. Houston Street, Marshall, Texas 75670. Id.
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`¶ 8. AGIS has been doing business in Marshall, Texas since its formation in 2017. Id. AGIS also
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`has a data center in this District, located at
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`. Id. ¶ 9. The
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`Marshall data center “hosts servers, code, applications, and services necessary to run operations
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`for AGIS, Inc.’s LifeRing and ASSIST products and solutions,” and is used to store code,
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`documents, and other data related to AGIS, Inc.’s LifeRing and ASSIST products and solutions.
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`Id.
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`AGIS’s sister entity and non-party AGIS, Inc. have maintained offices in Jupiter, Florida,
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`and Austin, Texas. Ex. A, Beyer Decl. ¶¶ 4, 10. Nearly all employees and consultants of AGIS
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`and AGIS, Inc. are located near or close to this District, and all individuals who work for or are
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 9 of 34 PageID #: 1592
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`
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`affiliated with AGIS (as discussed herein) will find it far more convenient to litigate in this District.
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`Id. ¶¶ 13-20.
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`B.
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`Defendant’s Connections to the Eastern District of Texas
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`Defendant Lyft is a company offering on-demand ridesharing to passengers by matching
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`drivers and riders via the Lyft mobile application. See Ex. B, “What is Lyft?” Launched in 2012,
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`Lyft boasts that it is “one of the largest multimodal transportation networks in the United States
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`and Canada.” Ex. C, Lyft 2020 10-K at 5. Since 2012, Lyft has expanded its offerings to include
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`access to a network of “shared bikes and scooters (‘Light Vehicles’)” and Lyft Rentals, “an
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`offering for renters who want to rent a car for a fixed period of time for personal use.” Id. Today,
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`Lyft’s “transportation network” includes: (1) Ridesharing Marketplace; (2) Express Drive; (3) Lyft
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`Rentals; (4) Bikes and Scooters; (5) Public Transit; and (6) Autonomous Vehicles. Id.
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`Lyft offers its services in over 45 cities in Texas, including six cities in this District,
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`including Beaumont, Bryan, Denton, League City, Texas City, and Tyler. See Ex. D, Lyft Cities.
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`Lyft also offers its Express Drive program through Flexdrive and Hertz. See Ex. E, Express Drive.
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`Express Drive cities include Austin, Texas, Dallas, Texas, Fort Worth, Texas, Houston, Texas, and
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`San Antonio, Texas. See id. In addition, Lyft maintains “Lyft Hub” locations in San Antonio,
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`Dallas, Houston, and Austin. Ex. F, Lyft Hub. Lyft reports that as of December 31, 2020, it had
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`“4,675 employees in approximately 100 offices and additional locations, including Driver Hubs,
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`Driver Centers, and Service Desks.” Ex. C at 17. Lyft offers for its drivers Driver Center services,
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`including servicing for Lyft vehicles through the Lyft Mobile Service, which is available “in or
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`near eight major metros” including the Dallas/Fort Worth area. See Ex. G, Lyft Driver Services.
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`Lyft also offers “Lyft + Openbay” which is a “large network of car maintenance and service
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`providers across the country” which allows drivers to “choose from local shops, dealers, and
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`4
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`national providers” which are vetted by Lyft and “has a standard of quality required to be on the
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`platform.” Ex. H, Lyft Driver Services.
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`C.
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`Procedural History
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`On January 29, 2021, AGIS filed three patent infringement actions, including an action
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`against Lyft alleging infringement of U.S. Patent Nos. 7,031,728 (the “’728 Patent”); 7,630,724
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`(the “’724 Patent”); 8,213,970 (the “’970 Patent”); 10,299,100 (the “’100 Patent”); and 10,341,838
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`(the “’838 Patent”) (collectively, the “Patents-in-Suit”). AGIS Software Dev. LLC v. Lyft, Inc., No.
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`2:21-cv-00024-JRG, Dkt. No. 1 (E.D. Tex. Jan. 29, 2021). This case was consolidated with the
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`cases against Uber Technologies, Inc., WhatsApp, Inc., T-Mobile USA, Inc., and T-Mobile US,
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`Inc. with the AGIS Software Dev. LLC v. T-Mobile USA, Inc. and T-Mobile US, Inc., Case No.
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`2:21-cv-00072-JRG (E.D. Tex.) designated as the lead case.
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`On April 27, 2021, Lyft filed the present motion to dismiss, or in the alternative, motion to
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`transfer to another venue. See AGIS Software Dev., No. 2:21-cv-00072-JRG, Dkt. 30 (E.D. Tex.
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`Apr. 27, 2021).2
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`D.
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`This Court’s Experience with the Patents-in-Suit
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`This Court has had experience with the Patents-in-Suit or related patents. In 2017, AGIS
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`filed five actions in this District against Apple, LG Electronics, HTC, Huawei, and ZTE, alleging,
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`inter alia, infringement of four of the Patents-in-Suit3 asserted in this case (the “2017 AGIS
`
`
`2 Lyft argues that it also “supports a stay of this case” pending Defendant Uber’s Motion to Stay.
`Lyft did not join in Uber’s Motion to Stay nor did it file its own Motion to Stay, yet it moves in
`the alternative for a stay without submitting any briefing. While the cases are consolidated for
`purposes of all pretrial purposes, this does not include motions in which Lyft did not join and
`submitted by another Defendant. Accordingly, AGIS opposes Lyft’s improper attempt to join
`Uber’s Motion at this belated stage.
`3 The 2017 AGIS Cases included assertion of U.S. Patent No. 8,213,970 (the “’970 Patent”) which
`is not asserted here.
`
`5
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`

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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 11 of 34 PageID #: 1594
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`
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`Cases”).4 Four of the 2017 AGIS Cases were litigated in this Court from the date of filing through
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`the pre-trial conferences, and accordingly, this Court is intimately familiar with the legal and
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`factual issues unique to the Patents-in-Suit, including the incorporation by reference of the ’724
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`and ’728 Patents. Further, the 2017 AGIS Cases progressed through claim construction and
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`resolved numerous fact and expert discovery issues, gaining intimate knowledge relevant to the
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`Patents-in-Suit and the underlying technology.
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`The Court also denied motions to dismiss and/or transfer in each of the 2017 AGIS Cases,
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`except in the ZTE Case. See AGIS Software Dev. LLC v. HTC Corp., No. 2:17-CV-00514-JRG,
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`2018 WL 4680558, at *10 (E.D. Tex. Sept. 28, 2018), reconsideration denied, No. 2:17-CV-
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`00514-JRG, 2019 WL 8198620 (E.D. Tex. Feb. 22, 2019); AGIS Software Dev. LLC v. HTC Corp.,
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`No. 2:17-CV-00514-JRG, 2018 WL 4680557, at *10 (E.D. Tex. Sept. 28, 2018); AGIS Software
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`Dev. LLC v. Apple, Inc., No. 2:17-CV-00516-JRG, 2018 WL 2721826, at *9 (E.D. Tex. June 6,
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`2018); AGIS Software Dev. LLC v. Huawei Device USA Inc., No. 2:17-CV-00513-JRG, 2018 WL
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`2329752, at *9 (E.D. Tex. May 23, 2018); see also AGIS Software Dev., LLC v. ZTE Corp., No.
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`2:17-CV-00517-JRG, 2018 WL 4854023, at *1 (E.D. Tex. Sept. 28, 2018) (the “ZTE Case”).
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`Before the transfer of the ZTE Case, AGIS filed a Notice of Voluntary Dismissal Without
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`Prejudice.5 See ZTE Case, No. 2:17-cv-00517-JRG, Dkt. 86 (E.D. Tex. Oct. 8, 2018). AGIS
`
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`4 AGIS Software Dev. LLC v. Huawei Device USA Inc., Case No. 2:17-CV-513-JRG (Lead Case);
`AGIS Software Dev. LLC v. Apple Inc., Case No. 2:17-CV-516-JRG (Consolidated Case); AGIS
`Software Dev. LLC v. HTC Corp., Case No. 2:17-CV-514-JRG (Lead Case); AGIS Software Dev.
`LLC v. LG Elecs, Inc., Case No. 2:17-CV-515-JRG (Consolidated Case); AGIS Software Dev. LLC
`v. ZTE Corp., Case No. 2:17-CV-517-JRG (Consolidated Case) (“ZTE Case”).
`5 The circumstances surrounding the voluntary dismissal in the ZTE Case were different where
`ZTE did not have a presence in the District or in the alternative in the Western District of Texas.
`Accordingly, AGIS filed the notice of voluntary dismissal without prejudice before ZTE filed an
`answer or a motion for summary judgment. See ZTE Case, No. 2:17-cv-00517-JRG, Dkt. 86 at 1.
`
`6
`
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`Case 2:21-cv-00072-JRG-RSP Document 67 Filed 05/27/21 Page 12 of 34 PageID #: 1595
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`ultimately reached settlements with all Defendants in the 2017 AGIS Cases, including settlements
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`with Apple, LG Electronics, and HTC just prior to pre-trial.
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`AGIS also filed cases against Google LLC, Samsung Electronics Co., Ltd., Samsung
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`Electronics of America, Inc., and Waze Mobile Ltd. (the “2019 AGIS Cases”) covering the same
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`Patents-in-Suit,6 the same underlying technology, and substantially identical claims. Further, the
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`Defendants in the 2019 AGIS Cases asserted the ’724 Patent as prior art.
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`IV.
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`LEGAL STANDARD
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`On a motion to dismiss for improper venue, a plaintiff need only present facts which, when
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`taken as true, establish venue. Langton v. Cbeyond Commc’n, L.L.C. 282 F. Supp. 2d 504, 508
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`(E.D. Tex. 2003). The Court “must accept as true all allegations in the complaint and resolve all
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`conflicts in favor of the plaintiff.” Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 F. App’x
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`612, 615 (5th Cir. 2007) (citation omitted). In determining whether venue is proper, “the [C]ourt
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`is permitted to look at evidence in the record beyond simply those facts alleged in the complaint
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`and its proper attachments.” Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009).
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`Venue for domestic corporations in patent infringement cases is proper “[1] in the judicial
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`district where the defendant resides, or [2] where the defendant has committed acts of infringement
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`and has a regular and established place of business.” TC Heartland LLC v. Kraft Foods Grp.
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`Brands LLC, -- U.S. --, 137 S. Ct. 1514, 1519 (2017) (citing 28 U.S.C. § 1400(b)). “Where a
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`complaint alleges infringement, the allegations ‘satisfy the ‘acts of infringement’ requirement of
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`§ 1400(b)’ ‘[a]lthough the[] allegations may be contested.’” Seven Networks, LLC v. Google LLC,
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`315 F. Supp. 3d 933, 942 (E.D. Tex. 2017) (internal citation omitted). To establish a “regular and
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`established place of business,” “(1) there must be a physical place in the district; (2) it must be a
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`6 While the 2019 AGIS Cases included the ’055, ’251, ’838, and ’829 Patents, they also included
`the ’970 Patent and U.S. Patent No. 9,820,123 which are not asserted here.
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`regular and established place of business; and (3) it must be the place of the defendant.” In re
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`Cray, Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017). The defendant is not required to own or lease
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`the place of business if the defendant establishes or ratifies the place or exercises other attributes
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`of possession or control over the places. Id. The Federal Circuit has stressed that “each case
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`depends on its own facts” (id. at 1362) and “no one fact is controlling.” Id. at 1366. Thus, “at
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`least in a difficult case, the Court should permit venue-related discovery, to allow the adversarial
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`process to aid the Court in making a fact-specific decision on a well-developed factual record.”
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`Mallinckrodt IP v. B. Braun Med. Inc., No. 17-365-LPS, 2017 WL 6383610, at *3 (D. Del. Dec.
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`14, 2017).
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`In In re Google, the Federal Circuit confirmed that “a place of business” does not require
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`“real property ownership or a leasehold interest in real property” and agreed with this Court in
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`holding that “leased shelf space or rack space can serve as a ‘place’ under the statute.” In re
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`Google LLC, 949 F.3d 1338, 1343-44 (Fed. Cir. 2020). With respect to the second Cray factor,
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`however, the Federal Circuit announced that a “place of business” generally requires an employee
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`or agent of the defendant to be conducting business at that place. Id. at 1344. The “agent or
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`employee” need not be “a human agent” and the Court left open the possibility for “a machine [to]
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`be an ‘agent.’” Id. at 1347.
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`V.
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`ARGUMENT
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`A.
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`Venue is Proper in this District
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`Defendant’s Motion should be denied because Lyft maintains multiple regular and
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`established places of business in this District, which are proper bases for venue.
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`1.
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`Lyft Has Regular and Established Places of Business in this
`District
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`Defendant argues that because a regular and established place of business in this District
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`is not “owned by Lyft,” it cannot establish venue. Defendant misstates the law. Defendant is not
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`required to own a regular and established place of business in this District in order to lay venue.
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`Under Cray, “[Section] 1400(b) requires that ‘a defendant has’ a ‘place of business’ that is
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`‘regular’ and ‘established’” to lay venue. Cray, 871 F.3d at 1362. The Federal Circuit has held
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`that a place of business is “of the defendant” if it is established or ratified by the defendant. Id. at
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`1363. A defendant is not required to own or lease the place if it exercises other attributes of
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`possession or control over the place (id.) and the statute can “be satisfied by any physical place
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`that the defendant could ‘possess[] or control.’” In re Google, 949 F.3d at 1343 (internal citation
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`omitted). This requirement is satisfied if the defendant “actually engage[s]” in business from the
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`physical location in the District. Intellectual Ventures II LLC v. FedEx Corp., No. 2:16-cv-980-
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`JRG, 2017 WL 5630023, at *7 (E.D. Tex. Nov. 22, 2017).
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`As plead in AGIS’s Complaint, Defendant maintains a regular and established physical
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`place of business with its Lyft Express Drive location at 928 West Spring Creek Parkway, Plano,
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`Texas 75023. See Dkt. 1 ¶ 6. Defendant submits that this location has not been in operation since
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`2019. However, Lyft’s own website offers the “Lyft Express Drive Plano” as a pick-up location.
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`See Dkt. 1 ¶ 8; see also Ex. B.
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`Further, the vehicles of Lyft drivers in this District are physical locations of Defendant.
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`Defendant alleges that these vehicles cannot serve as regular and established places of Defendant
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`because they are “transient.” However, Defendant does not and cannot dispute that these vehicles
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`are physical locations from which the business of Defendant is conducted. Moreover, Defendant’s
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`entire business model is to offer transportation services. See Ex. I, Lyft Terms (“The Lyft Platform
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`provides a marketplace where, among other things, persons who seek transportation to certain
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`destinations . . . can be matched with transportation options to such destinations.”). While Lyft
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`vehicles are, by nature, “transient” in that they are physically able to be moved, they are
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`nonetheless physical places from which the business of Defendant is conducted.
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`The Federal Circuit has held that “a fixed physical location in this district is not a
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`prerequisite to proper venue.” In re Cray, 871 F.3d at 1362. Rather, the “appropriate inquiry is
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`whether the corporate defendant does its business in that district through a permanent and
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`continuous presence there” and not whether “it has a fixed physical presence in the sense of a
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`formal office or store.” In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985); see also In re
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`Google, 949 F.3d at 1343 (“A ‘place’ merely needs to be a ‘physical, geographical location in the
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`district for which the business of the defendant is carried out.’”). Defendant argues that it does not
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`approve or restrict drivers from entering or offering Lyft’s services in this District. However,
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`Defendant advertises and offers its products and services in over 45 cities in Texas, including six
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`cities in this District, which includes Beaumont, Bryan, Denton, League City, Texas City, and
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`Tyler. See Ex. D. It is not by chance that drivers happen to drive into and offer services within
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`this Judicial District. While Defendant asserts that it does not “maintain” any vehicles within a
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`particular judicial district, it does actively advertise its products to users in this District, and
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`specifically to users in Beaumont, Bryan, Denton, League City, Texas City, and Tyler.
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`Defendant’s own terms of service state that it is Lyft who authorizes the matching of drivers and
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`riders “based on factors such as your location, the requested pickup location, the estimated time
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`to pickup, your destination, user preferences, driver mode, and platform efficiency.” Ex. H
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`(emphasis added). Further, drivers are not permitted to drive for Lyft unless they meet Lyft’s
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`driver requirements, including submission of an a