Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 1 of 24 PageID #: 2018
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`
`§
`Case No. 2:21-cv-00072-JRG
`§
`(LEAD CASE)
`§
`
`JURY TRIAL DEMANDED
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`§
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`§
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Case No. 2:21-cv-00029-JRG
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`
`Defendants.
`
`Plaintiff,
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`
`v.
`
`
`WHATSAPP, INC.,
`
`
`
`Defendant.
`
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE
`IN OPPOSITION TO DEFENDANT WHATSAPP, INC.’S
`MOTION TO DISMISS FOR IMPROPER VENUE (DKT. 34)
`
`
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 2 of 24 PageID #: 2019
`
`TABLE OF CONTENTS
`
`Page(s)
`
`I.
`
`II.
`
`INTRODUCTION .............................................................................................................. 1
`
`RESPONSE TO STATEMENT OF ISSUES TO BE DECIDED ...................................... 1
`
`III.
`
`BACKGROUND ................................................................................................................ 2
`
`A.
`
`B.
`
`C.
`
`D.
`
`Procedural Background ........................................................................................... 2
`
`AGIS Software Development LLC, AGIS, Inc., and AGIS Holdings,
`LLC ......................................................................................................................... 2
`
`Defendant’s Connections to the Eastern District of Texas ..................................... 3
`
`This Court’s Experience with the Patents-in-Suit ................................................... 5
`
`IV.
`
`V.
`
`LEGAL STANDARD ......................................................................................................... 6
`
`ARGUMENT ...................................................................................................................... 7
`
`A. WhatsApp Has Regular and Established Places of Business in this
`District..................................................................................................................... 7
`
`B. WhatsApp’s Data Centers in this District are Regular and Established
`Places of Business of WhatsApp ............................................................................ 8
`
`C.
`
`D.
`
`E.
`
`The WhatsApp Data Centers are WhatsApp’s “Regular and Established
`Places of Business” ................................................................................................. 9
`
`The WhatsApp Data Centers are “of WhatsApp” ................................................. 13
`
`Venue Discovery is Warranted ............................................................................. 14
`
`VI.
`
`IN THE EVENT THE COURT DETERMINES TRANSFER IS
`WARRANTED, THIS CASE SHOULD BE TRANSFERRED TO THE WDTX
`OR THE NDTX ................................................................................................................ 15
`
`A.
`
`B.
`
`The Private Interest Factors Weigh Against Transfer........................................... 16
`
`The Public Interest Factors Weigh Against Transfer ............................................ 17
`
`VII. CONCLUSION ................................................................................................................. 18
`
`
`
`
`i
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 3 of 24 PageID #: 2020
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`1-800 Contacts, Inc. v. Lens.com, Inc.,
`722 F.3d 1229 (10th Cir. 2013) ...............................................................................................11
`
`Aerielle, Inc. v. Monster Cable Prods., Inc.,
`No. 2:06-cv-382 (TJW), 2007 WL 951639 (E.D. Tex. Mar. 26, 2007) ...................................17
`
`AGIS Software Dev. LLC v. Apple, Inc.,
`No. 2:17-CV-00516-JRG, 2018 WL 2721826 (E.D. Tex. June 6, 2018) ..................................5
`
`AGIS Software Dev. LLC v. HTC Corp.,
`No. 2:17-CV-00514-JRG, 2018 WL 4680557 (E.D. Tex. Sept. 28, 2018) ...............................5
`
`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) ....................................................................................................................5
`
`AGIS Software Dev. LLC v. Huawei Device USA Inc.,
`No. 2:17-CV-00513-JRG, 2018 WL 2329752 (E.D. Tex. May 23, 2018) ................................5
`
`AGIS Software Dev. LLC v. WhatsApp, Inc.,
`No. 2:21-cv-00029-JRG, Dkt. No. 1 (E.D. Tex. Jan. 29, 2021) ............................................2, 4
`
`AGIS Software Dev., LLC v. ZTE Corp.,
`No. 2:17-CV-00517-JRG, 2018 WL 4854023, at *1 (E.D. Tex. Sept. 28,
`2018) ......................................................................................................................................5, 6
`
`Aloft Media, LLC v. Adobe Sys. Inc.,
`No. 6:07-cv-355, 2008 WL 819956 (E.D. Tex. Mar. 25, 2008) ..............................................17
`
`Alpine View Co. v. Atlas Copco AB,
`205 F.3d 208 (5th Cir. 2000) ...................................................................................................14
`
`Ambraco v. Bossclip, B.V.,
`570 F.3d 233 (5th Cir. 2009) .....................................................................................................6
`
`Blitzsafe Texas LLC v. Mitsubishi Elec. Corp.,
`No. 2:17-cv-00430-JRG, 2018 WL 2210686 (E.D. Tex. May 22, 2019) ................................14
`
`Braspetro Oil Servs. Co. v. Modec (USA), Inc.,
`240 F. App’x 612 (5th Cir. 2007) ..............................................................................................6
`
`ii
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 4 of 24 PageID #: 2021
`
`Cheetah Omni, LLC v. NP Photonics, Inc.,
`No. 6:13-cv-418, 2014 WL 11709437 (E.D. Tex. Mar. 28, 2014) ..........................................16
`
`In re Cray, Inc.,
`871 F.3d 1355 (Fed. Cir. 2017)........................................................................................ passim
`
`Desai v. ADT Sec. Sys., Inc.,
`78 F. Supp. 3d 896 (N.D. Ill. 2015) .........................................................................................12
`
`Garrett v. Hanson,
`No. 2:19-CV-00307-JRG, 2019 WL 6920818, at *3 n. 4 (E.D. Tex. Dec. 19,
`2019) ........................................................................................................................................15
`
`In re Google LLC,
`949 F.3d 1338 (Fed. Cir. 2020)........................................................................................ passim
`
`Intellectual Ventures II LLC v. FedEx Corp.,
`No. 2:16-cv-980-JRG, 2017 WL 5630023 (E.D. Tex. Nov. 22, 2017) ...................8, 13, 14, 15
`
`Langton v. Cbeyond Commc’n,
`282 F. Supp. 2d 504 (E.D. Tex. 2003) .......................................................................................6
`
`Mallinckrodt IP v. B. Braun Med. Inc.,
`No. 17-365-LPS, 2017 WL 6383610 (D. Del. 2017) ...........................................................7, 14
`
`Mangosoft Intellectual Property, Inc. v. Skype Techs. SA,
`No. 2:06-cv-390, 2007 WL 2008899 (E.D. Tex. July 5, 2007) ...............................................17
`
`Meyer v. Holley,
`537 U.S. 280, 123 S. Ct. 824 (2003) ..................................................................................10, 11
`
`Pac. Gas & Elec. Co. v. United States,
`838 F.3d 1341 (Fed. Cir. 2016)................................................................................................12
`
`Rensselaer Polytechnic Inst. v. Amazon.com, Inc.,
`No. 1:18-cv-00549, 2019 WL 3755446 (N.D.N.Y. Aug. 7, 2019) ..............................13, 14, 15
`
`Seven Networks, LLC v. Google LLC,
`315 F. Supp. 3d 933 (E.D. Tex. 2017) ...........................................................................6, 11, 17
`
`State Farm Mut. Auto. Ins. Co. v. Bockhorst,
`453 F.2d 533 (10th Cir. 1972) .................................................................................................12
`
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`-- U.S. --, 137 S. Ct. 1514 (2017) ..............................................................................................6
`
`Tinnus Enter., LLC v. Telebrands Corp.,
`No. 6:17-cv-00170-RWS, 2018 WL 4560742 (E.D. Tex. Mar. 9, 2018) ..........................13, 14
`
`iii
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`

`

`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 5 of 24 PageID #: 2022
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ...................................................................................................16
`
`Statutes
`
`28 U.S.C. § 1400(b) .......................................................................................................................11
`
`28 U.S.C. § 1406 ........................................................................................................................1, 15
`
`Other Authorities
`
`Federal Rule of Civil Procedure 12(b)(3) ........................................................................................1
`
`Restatement (Third) of Agency § 1.01 cmt. ..................................................................................12
`
`
`
`
`iv
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`

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`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 6 of 24 PageID #: 2023
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`
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`Plaintiff AGIS Software Development LLC (“Plaintiff” or “AGIS”), by and through its
`
`undersigned counsel, hereby submits this response in opposition to Defendant WhatsApp, Inc.’s
`
`(“Defendant” or “WhatsApp”)1 Motion to Dismiss for Improper Venue (Dkt. 34) (“Motion”).
`
`I.
`
`INTRODUCTION
`
`WhatsApp’s Motion to dismiss must fail. WhatsApp’s Motion is based on the faulty
`
`assumption that the Like Way Data Center is located exclusively in Tarrant County. However,
`
`publicly available records disclose that WhatsApp’s Like Way Data Center is also located in
`
`Denton County and WhatsApp pays taxes in Denton County for its data centers. Additionally, the
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`WhatsApp’s INAP data center, which houses WhatsApp’s servers and from which WhatsApp’s
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`business was conducted, is located in Plano, Texas which is located in this District. Accordingly,
`
`WhatsApp has failed to show that venue is improper, and the Court must, therefore, deny
`
`WhatsApp’s Motion in its entirety.
`
`In the event the Court finds otherwise, AGIS respectfully requests that it be permitted to
`
`conduct venue discovery prior to a determination on the Motion. Should the Court determine that
`
`venue is improper, and transfer is warranted in the interests of justice pursuant to 28 U.S.C. § 1406,
`
`the Court should transfer this action to the Western District of Texas (“WDTX”), Waco Division,
`
`or the Northern District of Texas (“NDTX”), which is much more convenient.
`
`II.
`
`RESPONSE TO STATEMENT OF ISSUES TO BE DECIDED
`
`The Court should decline to dismiss this case under Federal Rule of Civil Procedure
`
`12(b)(3) for improper venue over WhatsApp in this District because WhatsApp has regular and
`
`established places of business in this District.
`
`
`1 WhatsApp argues that WhatsApp, Inc. is improperly named in the Complaint. However,
`WhatsApp, Inc. is registered with the SEC and also filed an application, for example, for a utility
`patent entitled “Methods and systems for determining an unread message count,” filed on April
`27, 2021. See Exhibit B.
`
`
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 7 of 24 PageID #: 2024
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`
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`III. BACKGROUND
`
`A.
`
`Procedural Background
`
`On January 29, 2021, AGIS filed three patent infringement actions, including an action
`
`against WhatsApp alleging infringement of U.S. Patent Nos. 7,031,728 (the “’728 Patent”);
`
`7,630,724 (the “’724 Patent”); 9,408,055 (the “’055 Patent”); 9,445,251 (the “’251 Patent”);
`
`9,467,838 (the “’838 Patent”); and 9,749,829 (the “’829 Patent”) (collectively, the “Patents-in-
`
`Suit”). AGIS Software Dev. LLC v. WhatsApp, Inc., No. 2:21-cv-00029-JRG, Dkt. No. 1 (E.D.
`
`Tex. Jan. 29, 2021). On April 19, 2021, the Court consolidated all three cases with another case,
`
`AGIS Software Dev. LLC v. T-Mobile USA, Inc. and T-Mobile US, Inc., No. 2:21-cv-00072-JRG
`
`(E.D. Tex.) (Lead Case).
`
`On April 27, 2021, Defendant filed the instant Motion to dismiss this action for improper
`
`venue. Dkt. 34.
`
`B.
`
`AGIS Software Development LLC, AGIS, Inc., and AGIS Holdings,
`LLC
`
`Malcolm K. “Cap” Beyer founded AGIS, Inc. in 2004. Ex. A, Decl. of Malcolm K. Beyer
`
`Jr. (“Beyer Decl.”) ¶ 4.2 For over fifteen years, AGIS, Inc.’s primary business has revolved around
`
`offering the “LifeRing” products and solutions, which include client-based applications, and a
`
`server-based solution “for, generally, enabling smartphone, tablet, and PC users to easily and
`
`rapidly establish secure ad hoc digital networks.” Id. ¶ 11. Various versions of LifeRing have
`
`been offered and sold to military, defense, first-responder, and private military customers since
`
`2004. Id. AGIS, Inc. also offers a smartphone-based emergency broadcast and response system
`
`
`2 “Ex. __” refers to exhibits attached to the declaration of Vincent J. Rubino III, filed concurrently
`herewith.
`
`2
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 8 of 24 PageID #: 2025
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`
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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.
`
`In 2017, Mr. Beyer and the other AGIS, Inc. shareholders formed AGIS Holdings,
`
`Incorporated (“AGIS Holdings”), a Florida corporation. Id. AGIS Holdings consists of two
`
`subsidiaries, AGIS, Inc. and Plaintiff, AGIS Software Development LLC. Plaintiff AGIS holds
`
`the rights, by assignment, to the Asserted Patents, and licenses its patent portfolio to AGIS, Inc.
`
`Id. ¶ 7.
`
`AGIS is a limited liability company organized and existing under the laws of the State of
`
`Texas, with a principal place of business at 100 W. Houston Street, Marshall, Texas 75670. Ex.
`
`A, Beyer Decl. ¶ 8. AGIS has been doing business in Marshall, Texas since its formation in 2017.
`
`Id. AGIS also has a data center in this District, located at 1005 Stuart Lane, Marshall, Texas
`
`75672. Id. ¶ 9. The Marshall data center “hosts servers, code, applications, and services necessary
`
`to run operations for AGIS, Inc.’s LifeRing and ASSIST products and solutions,” and is used to
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`store code, documents, and other data related to AGIS, Inc.’s LifeRing and ASSIST products and
`
`solutions. Id.
`
`AGIS’s sister entity and non-party AGIS, Inc. maintains offices in Jupiter, Florida, and
`
`Austin, Texas. Ex. A, Beyer Decl. ¶ 4. Nearly all employees and consultants of AGIS and AGIS,
`
`Inc. are located near or close to this District, and all individuals who work for or are affiliated with
`
`AGIS (as discussed herein) will find it far more convenient to litigate in this District. Id. ¶¶ 13-
`
`21.
`
`C.
`
`Defendant’s Connections to the Eastern District of Texas
`
`Defendant WhatsApp is a company which offers a freeware, cross-platform centralized
`
`messaging and voice-over-IP service which allows users to send text messages, voice messages,
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`voice and video calls, and share images, documents, user locations, and other types of content.
`
`3
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`

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`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 9 of 24 PageID #: 2026
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`
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`WhatsApp is available “on phones all over the world,” including Android devices, iPhones, and
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`Mac or Windows PC. See Ex. C, WhatsApp Webpage. WhatsApp advertises that more than two
`
`billion people in over 180 countries use WhatsApp. See Ex. D, About WhatsApp. With use of its
`
`Accused Products, WhatsApp collects information including mobile phone number, push
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`notification name, billing information, and mobile device information. See Ex. C, WhatsApp
`
`Webpage. When a user uses the WhatsApp Site, WhatsApp servers automatically record certain
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`information such as web request, Internet Protocol (“IP”) address, browser type, browser language,
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`referring/exit pages and URLs, platform type, number of clicks, domain names, landing pages,
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`pages viewed and the order of the those pages, the amount of time spent on particular pages, the
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`date and time of the request, one or more cookies that may uniquely identify the browser, phone
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`number, phone number requesting the status of and various status information. When a user uses
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`the WhatsApp Accused Products, the “servers log certain general information that our application
`
`sends whenever a message is sent or received, or if you update or request any status information,
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`including time and date stamps and the mobile phone numbers the messages were sent from and
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`to.” Id.
`
`WhatsApp does business in Texas and offers its products and/or services and maintains
`
`data centers in this District, (see AGIS Software Dev. LLC v. WhatsApp, Inc., No. 2:21-cv-00029-
`
`JRG, Dkt. 1 ¶ 2 (E.D. Tex. Jan. 29, 2021)) including the Like Way data center and BPP at Internap
`
`Data Center (“INAP Data Center”). WhatsApp pays taxes in Denton County for its Like Way data
`
`center with an address at 4500 Like Way, Fort Worth, Texas 76177, and Collin County for the
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`BPP at INAP Data Center located at 1221 Coit Road, Plano, Texas 75075. See Ex. E, Collin
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`County Property Tax Record. WhatsApp maintains regular and established places of business in
`
`this District in support of its business activities throughout this District.
`
`4
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`

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`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 10 of 24 PageID #: 2027
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`
`
`D.
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`This Court’s Experience with the Patents-in-Suit
`
`The Patents-in-Suit (except for the ’724 and ’728 Patents) have prior litigation history in
`
`this District, and specifically before this Court. In 2017, AGIS filed five actions in this District
`
`against Apple, LG Electronics, HTC, Huawei, and ZTE alleging, inter alia, infringement of four
`
`of the Patents-in-Suit3 asserted in this case (the “2017 AGIS Cases”).4 Four of the 2017 AGIS
`
`Cases were litigated in this Court from the date of filing through the pre-trial conferences, and
`
`accordingly, this Court is intimately familiar with the legal and factual issues unique to the Patents-
`
`in-Suit, including the incorporation by reference of the ’724 and ’728 Patents. Further, the 2017
`
`AGIS Cases progressed through claim construction and resolved numerous fact and expert
`
`discovery issues, gaining intimate knowledge relevant to the Patents-in-Suit and the underlying
`
`technology.
`
`The Court also denied motions to dismiss and/or transfer in each of the 2017 AGIS Cases,
`
`except in the ZTE Case. See AGIS Software Dev. LLC v. HTC Corp., No. 2:17-CV-00514-JRG,
`
`2018 WL 4680558, at *10 (E.D. Tex. Sept. 28, 2018), reconsideration denied, No. 2:17-CV-
`
`00514-JRG, 2019 WL 8198620 (E.D. Tex. Feb. 22, 2019); AGIS Software Dev. LLC v. HTC Corp.,
`
`No. 2:17-CV-00514-JRG, 2018 WL 4680557, at *10 (E.D. Tex. Sept. 28, 2018); AGIS Software
`
`Dev. LLC v. Apple, Inc., No. 2:17-CV-00516-JRG, 2018 WL 2721826, at *9 (E.D. Tex. June 6,
`
`2018); AGIS Software Dev. LLC v. Huawei Device USA Inc., No. 2:17-CV-00513-JRG, 2018 WL
`
`2329752, at *9 (E.D. Tex. May 23, 2018); see also AGIS Software Dev., LLC v. ZTE Corp., No.
`
`
`3 The 2017 AGIS Cases included assertion of U.S. Patent No. 8,213,970 (the “’970 Patent”) which
`is not asserted here.
`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
`
`

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`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 11 of 24 PageID #: 2028
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`
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`2:17-CV-00517-JRG, 2018 WL 4854023, at *1 (E.D. Tex. Sept. 28, 2018). Before the transfer of
`
`the ZTE Case, AGIS filed a Notice of Voluntary Dismissal. See ZTE Case, Dkt. 85. AGIS
`
`ultimately reached settlements with all Defendants in the 2017 AGIS Cases, including settlements
`
`with Apple, LG Electronics, and HTC just prior to pre-trial.
`
`AGIS also filed cases against Google LLC, Samsung Electronics Co., Ltd., Samsung
`
`Electronics of America, Inc., and Waze Mobile Ltd. (the “2019 AGIS Cases”) covering the same
`
`Patents-in-Suit,5 the same underlying technology, and substantially identical claims. Further, the
`
`Defendants in the 2019 AGIS Cases asserted the ’724 Patent as prior art.
`
`IV.
`
`LEGAL STANDARD
`
`On a motion to dismiss for improper venue, a plaintiff need only present facts which, taken
`
`as true, establish venue. Langton v. Cbeyond Commc’n, 282 F. Supp. 2d 504, 508 (E.D. Tex.
`
`2003). The Court “must accept as true all allegations in the complaint and resolve all conflicts in
`
`favor of the plaintiff.” Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 F. App’x 612, 615, (5th
`
`Cir. 2007) (citation omitted). In determining whether venue is proper, “the [C]ourt is permitted to
`
`look at evidence in the record beyond simply those facts alleged in the complaint and its proper
`
`attachments.” Ambraco v. Bossclip, B.V., 570 F.3d 233, 238 (5th Cir. 2009).
`
`Venue for domestic corporations in patent infringement cases is proper “[1] in the judicial
`
`district where the defendant resides, or [2] where the defendant has committed acts of infringement
`
`and has a regular and established place of business.” TC Heartland LLC v. Kraft Foods Grp.
`
`Brands LLC, -- U.S. --, 137 S. Ct. 1514, 1519 (2017) (citing 28 U.S.C. § 1400(b)). “Where a
`
`complaint alleges infringement, the allegations ‘satisfy the ‘acts of infringement’ requirement of
`
`§ 1400(b)’ ‘[a]lthough the[] allegations may be contested.’” Seven Networks, LLC v. Google LLC,
`
`
`5 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.
`
`6
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 12 of 24 PageID #: 2029
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`
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`315 F. Supp. 3d 933, 942 (E.D. Tex. 2017) (internal citation omitted). To establish a “regular and
`
`established place of business,” “(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). The defendant is not required to own or lease
`
`the place of business if the defendant establishes or ratifies the place or exercises other attributes
`
`of possession or control over the places. Id. The Federal Circuit has stressed that “each case
`
`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
`
`process to aid the Court in making a fact-specific decision on a well-developed factual record.”
`
`Mallinckrodt IP v. B. Braun Med. Inc., No. 17-365-LPS, 2017 WL 6383610, at *3 (D. Del. 2017).
`
`In In re Google, the Federal Circuit confirmed that “a place of business” does not require
`
`“real property ownership or a leasehold interest in real property” and agreed with this Court in
`
`holding that “leased shelf space or rack space can serve as a ‘place’ under the statute.” In re
`
`Google LLC, 949 F.3d 1338, 1343-44 (Fed. Cir. 2020). With respect to the second Cray factor,
`
`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.
`
`V.
`
`ARGUMENT
`
`A. WhatsApp Has Regular and Established Places of Business in this
`District
`
`Defendant’s Motion should be denied because the data centers located in this District are
`
`a proper bases for venue. Under Cray, “[Section] 1400(b) requires that ‘a defendant has’ a ‘place
`
`of business’ that is ‘regular’ and ‘established’” to lay venue. In re Cray, 871 F.3d at 1362. The
`
`7
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`

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`Case 2:21-cv-00072-JRG-RSP Document 82 Filed 06/08/21 Page 13 of 24 PageID #: 2030
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`
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`Federal Circuit has held that a place of business is “of the defendant,” if it is established or ratified
`
`by the defendant. Id. at 1363. A defendant is not required to own or lease the place if it exercises
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`other attributes of possession or control over the place (id.) and “the statute could be satisfied by
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`any physical place that the defendant could ‘possess[] or control.’” In re Google, 949 F.3d at 1343
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`(internal citation omitted). This requirement is satisfied if the defendant “actually engage[s]” in
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`business from the physical location in the District. Intellectual Ventures II LLC v. FedEx Corp.,
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`No. 2:16-cv-980-JRG, 2017 WL 5630023, at *7 (E.D. Tex. Nov. 22, 2017).
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`B. WhatsApp’s Data Centers in this District are Regular and
`Established Places of Business of WhatsApp
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`The Like Way Data Center is a data center consisting of five buildings. Ex. F; Ex. G
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`(“Expanding our Fort Worth Data Center to five buildings.”) WhatsApp incorrectly contends that
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`the Like Way Data Center is not located in this District and, accordingly, venue is improper in this
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`District. However, WhatsApp relies on an incomplete presentation of the property sites that makes
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`up its Like Way Data Center complex based on documents generated in April 2017. See Dkt. 63-
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`4; Dkt. 63-9. Since 2017, WhatsApp and Facebook have continued to build out their Like Way
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`Data Center into Denton County.
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`Moreover, navigating to the Texas Department of Transportation’s Real Property Asset
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`Map webpage (Ex. H), selecting “Real Property Assets,” (Ex. I), and entering “4500 Like Way”
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`in the address search bar, generates a map of location of the Like Way Data Center which shows
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`that the top of the physical structure, in the shape of an “H,” extends into Denton County. See Ex.
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`J. Facebook’s own page shows that the “H” structure is that of Facebook. See Ex. K (“When
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`completed, the Fort Worth site will be Facebook’s largest data center to date, four buildings
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`connected to form two “H” shapes, plus one standalone center, for a total of 20 data halls on nearly
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`150 acres as Texas 170 and Park Vista Boulevard.”). This is confirmed by the Tarrant Appraisal
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`
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`District (TAD) Map which WhatsApp itself relies on. See Dkt. 63-13. However, WhatsApp
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`presents to the Court as evidence a map that does not show the actual Like Way Data Center, thus
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`failing to show that the Like Way Data Center physically extends into Denton County. See Ex. L.
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`Denton County Property Tax Records detail that WhatsApp pays for taxes for the
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`“Facebook Data Center” or “Alliance Gateway,” under several different accounts. See Exhibits
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`M-P. While WhatsApp asserts that these taxes are merely collected by the Northwest Independent
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`School District (“NISD”) for the Like Way Data Center, the only evidence it relies on is the
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`statement of a Facebook employee who relies on publicly available statements to presume that
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`these are merely taxes paid to Denton County on behalf of NISD. See Dkt. 34 at 6.
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`Moreover, WhatsApp alleges that it has not paid taxes for real property located in the
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`Eastern District of Texas, yet publicly available information reveals that it pays taxes in Denton
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`County for the BPP at INAP Data Center. See Ex. E. The INAP Data Center is located at 1221
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`Coit Road, Plano, Texas 75075, which WhatsApp concedes is located in this District.
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`Accordingly, the WhatsApp Data Centers meet the first Cray factor because they are “a physical
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`place in the district.” In re Cray Inc., 871 F.3d at 1360. The WhatsApp Data Centers meet the
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`first Cray factor because they are physical buildings located in the Eastern District of Texas.
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`C.
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`The WhatsApp Data Centers are WhatsApp’s “Regular and
`Established Places of Business”
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`The WhatsApp Data Centers meet the second Cray Factor because Facebook employees
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`and/or agents are located at these WhatsApp Data Centers conducting its business in this District.
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`See In re Google, 949 F.3d at 1344 (holding that a “place of business” generally requires an
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`employee or agent of the defendant to conduct business at that place). Facebook discloses that
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`since June 2015, it has had “an average of 950 workers on site every day.” Ex. G. WhatsApp does
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`not dispute that it has employees located at the Like Way Data Center conducting the business of
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`WhatsApp.
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`In addition, AGIS also contends that INAP is also WhatsApp’s agent in conducting its
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`business in this District with respect to the INAP Data Center, including by providing service to
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`WhatsApp and Facebook. INAP discloses that the INAP Data Center is the “Flagship Dallas Data
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`Center” which includes private data center suites, network connectivity, cages. and cabinets.
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`Further, INAP advertises that it has “24x7x365 NOC staff [who] provide[] the helpdesk and
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`support services, and remote hands services.” Exs. Q and R, Cloud and Colocation. “The essential
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`elements of agency are (1) the principal’s ‘right to direct or control’ the agent’s actions, (2) ‘the
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`manifestation of consent by [the principal] to [the agent] that the [agent] shall act on his behalf,’
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`and (3) the ‘consent by the [agent] to act.’” In re Google, 949 F.3d at 1345 (citing Meyer v. Holley,
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`537 U.S. 280, 286 (2003)). AGIS expects that WhatsApp employees have performed regular
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`activities at the INAP Data Center including overseeing the performance of services. Further,
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`WhatsApp has disclosed that when a user uses the WhatsApp Site, WhatsApp servers
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`automatically record certain information, such as web request, Internet Protocol (“IP”) address,
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`browser type, browser language, referring/exit pages and URLs, platform type, number of clicks,
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`domain names, landing pages, pages viewed and the order of the those pages, the amount of time
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`spent on particular pages, the date and time of the request, one or more cookies that may uniquely
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`identify the browser, phone number, phone number requesting the status of and various status
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`information. Ex. S. When a user uses the WhatsApp Accused Products, the “servers log certain
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`general information that our application sends whenever a message is sent or received, or if you
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`update or request any status information, including time and date stamps and the mobile phone
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`numbers the messages were sent from and to.” Ex. S. The Federal Circuit in In re Google left
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`open the issue of whether a “machine,” such as a server, may be an agent of WhatsApp for purposes
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`of establishing proper venue under § 1400(b). In re Google, 949 F.3d at 1347-48. Indeed, the
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`Federal Circuit did not disturb this Court’s finding in Seven Networks that the rack space occupied
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`by Google’s GGC servers satisfies the third Cray factor, and affirmatively endorsed Seven
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`Networks in holding that this space is a “fixed, geographic location” within the meaning of the first
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`Cray factor. Id. at 1343 (citing In re Cray, 871 F.3d at 1355); see also Seven Networks, 315 F.
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`Supp. 3d at 958-960. In addition, the Court did not foreclose the possibility, as noted in Judge
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`Wallace’s concurrence, that “Google’s end users become agents of Google in furtherance of its
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`business by virtue of voluntarily or involuntarily sharing information generated on Google’s
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`servers”—an issue left to the District Courts to decide. In re Google 949 F. 3d at 1348. Like
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`Google, WhatsApp concedes that it shares information located on WhatsApp’s servers, including
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`status information and contact information.
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`Additionally, the WhatsApp servers can be considered agents of WhatsApp. See id. at
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`1345-46. “An agency relationship is a ‘fiduciary relationship that arises when one person (a
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`‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s
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`behalf and subject to t