Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 1 of 16 PageID #: 2230
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE 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.
`
`UBER TECHNOLOGIES, INC., d/b/a UBER
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`WHATSAPP, INC.
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`
`
`
`§
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`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
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`CASE NO. 2:21-cv-00026-JRG
`(Member Case)
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`CASE NO. 2:21-cv-00029-JRG
`(Member Case)
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`LYFT, INC.’S REPLY IN SUPPORT OF ITS
`MOTION TO DISMISS FOR IMPROPER VENUE
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 2 of 16 PageID #: 2231
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
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`III.
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`
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`B.
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`C.
`D.
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`INTRODUCTION .............................................................................................................. 1
`ARGUMENT ...................................................................................................................... 1
`A.
`Venue is Improper in the Eastern District of Texas Because Lyft Does Not
`Maintain a Regular and Established Place of Business in This District. ................ 1
`1.
`The Closed Express Drive Location Cannot Serve as a Basis for Venue. .. 1
`2.
`Vehicles of Drivers Cannot Serve as a Basis for Venue Against Lyft. ...... 3
`Venue Is Improper in the Eastern District of Texas as to the ’838 Patent Because
`AGIS Cannot Show Infringement In This District. ................................................ 4
`Discovery is Not Needed to Determine Venue is Improper in This District. ......... 5
`This Case Should Be Transferred to the Northern District of California if Not
`Dismissed for Improper Venue. .............................................................................. 6
`1.
`“Relative Ease of Access to Sources of Proof” .......................................... 7
`2.
`“Availability of Compulsory Process to Secure the Attendance of
`Witnesses”................................................................................................... 8
`“Cost of Attendance for Willing Witnesses” .............................................. 9
`“All Other Practical Problems That Make Trial . . . Easy, Expeditious and
`Inexpensive” ............................................................................................... 9
`“Administrative Difficulties Flowing from Court Congestion” ............... 10
`“Local Interest in Having Localized Interests Decided at Home” ............ 10
`“Familiarity of the Forum with the Law” and “Avoidance of Conflict of
`Laws” ........................................................................................................ 10
`CONCLUSION ................................................................................................................. 10
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`3.
`4.
`
`5.
`6.
`7.
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`i
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 3 of 16 PageID #: 2232
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`CASES
`
`AGIS Software Dev. LLC v. HTC Corp.,
`No. 2:17-CV-00514-JRG, 2018 U.S. Dist. LEXIS 167029 (E.D. Tex. Sep. 28, 2018).............7
`
`Ambraco, Inc. v. Bossclip, B.V.,
`570 F.3d 233 (5th Cir. 2009) .....................................................................................................2
`
`Andra Grp., LP v. Victoria's Secret Stores, LLC,
`No. 4:19-cv-288-ALM-KPJ, 2020 WL 2478546 (E.D. Tex. Feb. 24, 2020) ............................2
`
`Andra Grp., LP v. Victoria's Secret Stores, LLC,
`No. 4:19-cv-288-ALM-KPJ, 2020 WL 1465894 (E.D. Tex. March 26, 2020) .....................2, 4
`
`CUPP Cybersecurity LLC v. Symantec Corp.,
`No. 3:18-CV-01554-M, 2019 WL 1070869 (N.D. Tex. Jan. 16, 2019) ....................................4
`
`Elbit Sys. Land & C4i Ltd. v. Hughes Network Sys. LLC,
`No. 2:15-CV-00037-RWS, 2017 U.S. Dist. LEXIS 136479 (E.D. Tex. July 19, 2017) ...........8
`
`In re Cray Inc.,
`871 F.3d 1355 (Fed. Cir. 2017)..............................................................................................3, 6
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)............................................................................................7, 10
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .................................................................................................7, 9
`
`In re ZTE (USA) Inc.,
`890 F.3d 1008 (Fed. Cir. 2018)..................................................................................................1
`
`KT Imaging USA, LLC v. HP Inc.,
`No. 4:20-cv-337, 2021 U.S. Dist. LEXIS 35071 (E.D. Tex. Feb. 25, 2021) .............................9
`
`Pers. Audio, LLC v. Google, Inc.,
`280 F. Supp. 3d 922 (E.D. Tex. 2017) ...................................................................................1, 4
`
`Quartz Auto Techs. LLC v. Lyft, Inc.,
`No. 1:20-CV-00719-ADA, 2021 U.S. Dist. LEXIS 58937 (W.D. Tex. Mar. 28, 2021) ...........6
`
`Seven Networks, LLC v. Google LLC,
`No. 2:17-CV-00442-JRG, 2018 WL 4026760 (E.D. Tex. Aug. 14, 2018)................................9
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`ii
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`Soverain IP, LLC v. AT&T, Inc.,
`No. 2:17-cv-00293-RWS-RSP, 2017 WL 5126158 (E.D. Tex. Oct, 31, 2017) ........................2
`
`Texas v. Google LLC,
`No. 4:20-CV-957-SDJ, 2021 U.S. Dist. LEXIS 96586 (E.D. Tex. May 20, 2021) ...................9
`
`Uniloc USA, Inc. v. Nutanix, Inc.,
`No. 2:17-CV-00174-JRG, 2017 U.S. Dist. LEXIS 229347 (E.D. Tex. Dec. 6, 2017) ..........3, 6
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`iii
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 5 of 16 PageID #: 2234
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`I.
`
`INTRODUCTION
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`AGIS has failed to meet its burden of establishing that venue is proper in this District, and
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`as a result, the Court must dismiss or transfer this case. See In re ZTE (USA) Inc., 890 F.3d 1008,
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`1013 (Fed. Cir. 2018). It is undisputed that the only physical location AGIS has identified in this
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`district was closed over a year ago and that venue is decided at the time a complaint is filed.
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`AGIS’s only remaining venue argument—that privately-owned vehicles operated by drivers
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`using the Lyft app support venue (see Dkt. 67 (“Opp.”), at 9–16)—is inconsistent with clear
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`guidance from the Federal Circuit on venue.1
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`Should this Court decide that transfer of this case is warranted over dismissal, Lyft submits
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`that this case should be transferred to the Northern District of California because AGIS has not
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`shown that this case could have been brought in the Western District of Texas. The Northern
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`District of California is also more convenient under the Fifth Circuit’s § 1404 transfer factors.
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`II.
`
`ARGUMENT
`A. Venue is Improper in the Eastern District of Texas Because Lyft Does Not
`Maintain a Regular and Established Place of Business in This District.
`1. The Closed Express Drive Location Cannot Serve as a Basis for Venue.
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`It is undisputed that venue is determined in this District when a complaint is filed, and
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`that the Plano Express Drive location was closed for over a year when AGIS filed the current
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`lawsuit. See Mot. (“Mot.”), § V(B)(1); Pers. Audio, LLC v. Google, Inc., 280 F. Supp. 3d 922,
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`931 (E.D. Tex. 2017). In its opposition, AGIS ignores the fact that there is no Express Drive
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`location in this District and instead focuses on whether the closed Plano Express Drive location
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`was owned or rented by Lyft. See Dkt. 67 (“Opp.”) at 9–14. Because the location is closed, the
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`1 AGIS abandons venue arguments based on alleged “dedicated pickup locations” which do not exist. See Mot. at
`7–10. AGIS’s reference to a pick-up location at the Tyler airport, raised for the first time in AGIS’s brief, is no
`different than ordinary pick-up locations discussed in Lyft’s motion which are street corners, restaurants, homes,
`airports, or other locations requested by users and not owned, leased, or otherwise controlled by Lyft. See id.
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 6 of 16 PageID #: 2235
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`former relationship between Lyft and the Pep Boys Plano store is immaterial to the venue analysis.
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`Lyft has submitted a sworn declaration attesting that the Alleged Plano Express Drive
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`Location ceased to exist on August 15, 2019 controverting AGIS’s unsupported statements in the
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`Complaint.2 See Ex. 1 to Mot. (“Loosen Decl.”), ¶ 6. In view of the evidence presented, the
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`Alleged Plano Express Drive Location cannot serve as a basis for venue. See Soverain IP, LLC
`
`v. AT&T, Inc., No. 2:17-cv-00293-RWS-RSP, 2017 WL 5126158, at *2 (E.D. Tex. Oct, 31, 2017)
`
`(plaintiff’s “allegations in the complaint are taken as true unless controverted by affidavits,
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`declarations, or other evidence.”); Andra Grp., LP v. Victoria's Secret Stores, LLC, No. 4:19-cv-
`
`288-ALM-KPJ, 2020 WL 2478546, at *2 (E.D. Tex. Feb. 24, 2020), report and recommendation
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`adopted, No. 4:19-cv-288-ALM-KPJ, 2020 WL 1465894 (E.D. Tex. Mar. 26, 2020) (citing
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`Ambraco, Inc. v. Bossclip, B.V., 570 F.3d 233, 238 (5th Cir. 2009) (the Court may “look beyond
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`the complaint to evidence submitted by the parties” when determining if venue is proper).
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`Because the Alleged Plano Express Drive Location did not exist at the time of filing and
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`therefore cannot confer venue in the present case, it is unnecessary for the Court to determine
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`whether an Express Drive location, generally, is sufficient to lay venue against Lyft.
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`Notwithstanding the foregoing, AGIS makes several assertions in its Opposition which—
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`although not relevant to the venue analysis—necessitate a response from Lyft. First, Lyft does
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`not, and has never, leased or otherwise compensated Pep Boys or any other entity for use of space
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`at 928 West Spring Creek Parkway, Plano, Texas 75023. Loosen Decl., ¶ 7. Second, contrary to
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`AGIS’s allegations, there are no in-district Express Drive locations which are “staffed by
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`employees and/or agents of Lyft, and are regularly visited by Lyft drivers.” See id., ¶ 8; see also
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`2 AGIS argues that a Lyft webpage supports its contention that Lyft has an Express Drive location in Plano. The
`identified webpage, however, merely calculates fares from any number of locations entered by a user and cannot
`controvert Lyft’s sworn declaration confirming that the Plano location has been closed since August 2019.
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`2
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 7 of 16 PageID #: 2236
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`Opp. at 11 (citing Dkt. 1, ¶ 7). These allegations about Express Drive locations in AGIS’s
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`opposition are inaccurate, but they are irrelevant to the venue analysis where no Express Drive
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`location exists and need not be resolved to confirm that venue in this District is not proper. See
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`Loosen Decl. at ¶ 6.
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`2. Vehicles of Drivers Cannot Serve as a Basis for Venue Against Lyft.
`
`AGIS’s argument that a vehicle providing rides via the Lyft app constitutes a “regular and
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`established place of business” for venue purposes is even more far-fetched than the bases
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`considered and rejected in In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017) and Uniloc USA, Inc.
`
`v. Nutanix, Inc., No. 2:17-CV-00174-JRG, 2017 U.S. Dist. LEXIS 229347 (E.D. Tex. Dec. 6,
`
`2017), both of which were discussed in Lyft’s Motion. See Mot. § V(B)(4))b). In those cases,
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`the patent owners unsuccessfully argued that venue was proper based on the residence of
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`defendants’ workers located in the district. Here, AGIS attempts to extend this failed argument
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`by claiming that gig workers’ vehicles, which can even more easily move between judicial
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`districts and are used for any number of purposes separate from providing Lyft rides, are regular
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`and established places of business of Lyft. For the same reasons workers’ homes cannot support
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`venue, drivers’ vehicles cannot be “of the Defendant” and cannot support venue. Drivers use
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`their own vehicles (whether they are owned, leased, or rented) to provide rides facilitated by
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`Lyft’s app. As discussed at length in Lyft’s Motion, vehicles used by Lyft drivers are not
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`“regular” or “established” places of business for Lyft and AGIS’s Opposition fails to rebut this
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`issue entirely.3 See Mot. § V(B)(4)(a).
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`The fact that Lyft drivers provide rideshare services within the District or that Lyft
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`3 In its Opposition, AGIS states that Lyft drivers are “employees and/or agents” of Lyft. See Opp. at 14–16. Although
`AGIS’s characterization of drivers as “employees and/or agents” of Lyft is incorrect, as drivers are independent
`contractors, the status of drivers using Lyft’s app is immaterial to the issue-at-hand—i.e., whether vehicles of drivers
`may be a regular and established place of business for Lyft for purposes of patent venue.
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 8 of 16 PageID #: 2237
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`advertises its app in Texas is—without more—insufficient to establish venue over Lyft. See
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`Andra Grp. LP, 2020 WL 1465894, at *5. Any argument that mobile vehicles of drivers using
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`Lyft’s app are regular and established place of business of Lyft would distort the scope of both
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`the patent-venue statute and binding Federal Circuit precedent. Indeed, concluding that venue
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`would be proper based on driver vehicles offering rides using Lyft’s app would be akin to a
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`finding that each phone sold by a mobile provider is a place of business for the provider simply
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`because of an end-user agreement. This Court has previously refused to make such findings and
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`should continue to refuse to do so here. See Pers. Audio, 280 F. Supp. 3d at 934; CUPP
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`Cybersecurity LLC v. Symantec Corp., No. 3:18-CV-01554-M, 2019 WL 1070869, at *3 (N.D.
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`Tex. Jan. 16, 2019).
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`Based on Federal Circuit precedent, a gig worker’s personal vehicle that can easily move
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`in and out of the District and provides rides using Lyft’s app on an inconsistent basis not
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`determined by Lyft cannot support venue, and AGIS cites no legal support to the contrary.
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`B. Venue Is Improper in the Eastern District of Texas as to the ’838 Patent Because
`AGIS Cannot Show Infringement In This District.
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`AGIS also fails to carry its burden in showing that Lyft infringes one or more claims of
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`the ’838 Patent in this District. This failure is unsurprising because Lyft does not and cannot
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`infringe the claims of the ’838 Patent in this District, as infringement of said patent requires the
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`provision and/or operation of “one or more servers” and Lyft’s accused servers, whether directly
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`operated by Lyft or via Amazon Web Services (“AWS”), are not located in this District.4 See
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`U.S. Patent No. 10,341,838, Claims 1–26; see also Loosen Decl., ¶ 20 (“Lyft does not operate
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`any servers in Texas that communicate with the Lyft rider app or Lyft driver app.”). In particular,
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`4 AGIS incorrectly states that “Lyft and its customers use Lyft’s servers in the District.” Opp. at 19. As stated herein
`and in Lyft’s Motion, Lyft does not operate any servers in this District that communicate with the Lyft rider app or
`Lyft driver app and thus rejects any contention that Lyft or its “customers” use “Lyft’s servers in the District.”
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`4
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 9 of 16 PageID #: 2238
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`each and every claim of the ’838 Patent requires that “one or more servers” perform all of the
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`claimed steps or operations. Because Lyft does not operate any accused servers, either directly
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`or via AWS, within this District, the claimed steps or operations cannot be practiced here.
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`In an attempt to evade dismissal of its infringement claim of the ’838 Patent, AGIS argues
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`that Lyft’s “physical server infrastructure” includes servers operated by third parties. See Opp.
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`at 17–18. Lyft does use third party servers, but as explained in Lyft’s Motion, these servers are
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`not located in this District, and despite its burden to do so, AGIS provides no evidence in its
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`Complaint or Opposition to the contrary. See Mot. at 14–15; Loosen Decl., ¶ 20.
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`AGIS’s allegations of indirect infringement also fail to provide a basis for proper venue
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`with respect to the ’838 Patent because each step in the ’838 Patent is performed by “one or more
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`servers” and, as a result, users of Lyft’s app cannot directly perform any limitations set forth in
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`the claims. See Opp. at 18–19; see also, e.g., Ex. 1 at Cl. 1. Because Lyft is the only alleged
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`direct infringer of the ’838 Patent, AGIS’s indirect infringement allegations are implausible.
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`C. Discovery is Not Needed to Determine Venue is Improper in This District.
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`Discovery is not needed to resolve the present motion as there are no factual disputes that
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`would impact the venue analysis. It is undisputed that the Alleged Plano Express Drive Location
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`closed in 2019, and AGIS is no longer arguing venue based on dedicated pickup locations
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`(because they do not exist). The only remaining issue is AGIS’s legal theory that drivers’ vehicles
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`can serve as a basis for venue which has been firmly rejected by the Federal Circuit. Accordingly,
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`the Court can resolve this motion based on the undisputed facts before it. AGIS asserts that venue
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`discovery will provide evidence on “Lyft’s relationships with Express Drive location partners,
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`including Pep Boys” (Opp. at 20), but because it is undisputed that no Express Drive location
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`existed in this District when the Complaint was filed, any former relationship between Lyft and
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`the Plano Pep Boys store would not impact the venue analysis. Discovery “regarding how the
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 10 of 16 PageID #: 2239
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`control [Lyft] exerts over its drivers” (id.) is similarly irrelevant to any issue because regardless
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`of whether drivers are independent contractors or employees, their vehicles are an insufficient
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`basis for venue. See In re Cray, 871 F.3d at 1363. Discovery is thus unnecessary to confirm
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`venue is improper.
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`D. This Case Should Be Transferred to the Northern District of California if Not
`Dismissed for Improper Venue.
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`In the event the Court does not dismiss the instant case for improper venue, Lyft
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`respectfully requests that the case be transferred to the Northern District of California (NDCA).
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`As a preliminary matter, AGIS has not shown that venue would be any more proper over Lyft in
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`the Western District of Texas (WDTX) than in this District. AGIS provides a list of purported
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`Lyft locations in WDTX without any analysis of whether any of these locations constitute a
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`regular and established place of business of Lyft as required under Federal Circuit precedent.
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`Opp. at 21–22. This lack of analysis is particularly troubling here where, for example, AGIS
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`relies on a Lyft webpage showing job openings in support of its contention that Lyft maintains an
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`office in Austin, Texas. See id. As this Court has previously recognized, job postings are
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`insufficient evidence to establish that a defendant maintains a regular and established place of
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`business in a particular district. See Uniloc, 2017 U.S. Dist. LEXIS 229347, at *14–15. As
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`another example, AGIS makes no attempt to resolve the equally-applicable venue issue that Lyft
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`raised with respect to the ’838 Patent—AGIS cannot show that Lyft has infringed the ’838 Patent
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`in WDTX as none of Lyft’s servers are located in Texas. Loosen Decl., ¶ 20. In fact, Judge
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`Albright recently dismissed similar patent claims directed at Lyft’s servers for improper venue.
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`Quartz Auto Techs. LLC v. Lyft, Inc., No. 1:20-CV-00719-ADA, 2021 U.S. Dist. LEXIS 58937,
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`at *9 (W.D. Tex. Mar. 28, 2021) (dismissing infringement claims for lack of proper venue when
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`infringement required the operation of servers and no accused servers were located in WDTX).
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`6
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`Because AGIS has not met the preliminary threshold of showing that both venue or jurisdiction
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`would be proper over Lyft in WDTX, this court should dismiss the case, or in the alternative,
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`transfer it to NDCA, where Lyft is headquartered and where venue would indisputably be proper.
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`Furthermore, the § 1404 transfer factors favor NDCA over WDTX because (1) cases
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`involving AGIS and the asserted patents are pending in NDCA, (2) the bulk of relevant evidence
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`will come from Lyft’s NDCA headquarters, (3) Lyft’s witnesses with relevant knowledge are
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`located in NDCA, (4) NDCA has an interest in adjudicating disputes involving Lyft, which is
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`based in NDCA, (5) relevant third-party witnesses would be subject to compulsory process in
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`NDCA; and (6) likely delays in WDTX due to the surge in case filings. Six of the eight transfer
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`factors favor transfer to NDCA over WDTX, including three of the only four transfer factors
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`analyzed by AGIS, and the remaining two factors are neutral. Because the cumulative weight of
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`the transfer factors weigh in favor of transferring to NDCA, the Court should transfer this case to
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`that district if the Court elects not to dismiss the case.
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`1. “Relative Ease of Access to Sources of Proof”
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`This factor concerns the location of relevant evidence. The Fifth Circuit has clarified that
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`the location of sources of proof remains a “meaningful factor in the [venue] analysis” despite
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`technological advances that make the physical location of documents less significant. In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir. 2008). As observed by the Federal Circuit,
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`“[i]n patent infringement cases, the bulk of the relevant evidence usually comes from the accused
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`infringer.” In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009). The location of the
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`defendant’s documents, therefore, tends to be the more convenient venue. AGIS Software Dev.
`
`LLC v. HTC Corp., No. 2:17-CV-00514-JRG, 2018 U.S. Dist. LEXIS 167029, at *23 (E.D. Tex.
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`Sep. 28, 2018) (finding private factor 1 favored transferring given that “a majority of the
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`documents relevant to the accused products are located closer to the transferee district and that
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 12 of 16 PageID #: 2241
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`defendants generally face a heavier evidentiary burden in patent cases”).
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`Here, the overwhelming majority of evidence related to the accused Lyft products are
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`located in NDCA.5 Lyft is headquartered in San Francisco where the bulk of documents and
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`witnesses relevant to this action are located. Lyft’s San Francisco office includes Lyft employees
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`responsible for the design, development, and support of the accused Lyft products, including the
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`three individuals identified in Lyft’s initial disclosures as knowledgeable about the functionality
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`of the accused products or Lyft’s rideshare financials. Because the majority of the sources of
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`proof in this case will likely come from Lyft’s NDCA offices, this factor favors transfer to NDCA.
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`2. “Availability of Compulsory Process to Secure the Attendance of
`Witnesses”
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`This factor concerns the Court’s subpoena power over witnesses. Transfer is favored
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`when a transferee forum has absolute subpoena power over third-party witnesses. Elbit Sys. Land
`
`& C4i Ltd. v. Hughes Network Sys. LLC, No. 2:15-CV-00037-RWS, 2017 U.S. Dist. LEXIS
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`136479, at *19 (E.D. Tex. July 19, 2017). Lyft has identified at least nine non-party prior art
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`witnesses6 that, on information and belief, reside in NDCA and are subject to that court’s
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`subpoena power. Like the claims of the Asserted Patents, these prior art references are directed
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`to systems and methods of providing and displaying dynamic geolocation information on a
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`computing device. See Exs. 2–8. The testimony of these prior art witnesses would provide
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`valuable insight into functionality of these prior art references and related systems. As Lyft has
`
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`5 In support of its contention that this case should be transferred to the WDTX, AGIS argues that Lyft maintains two
`Lyft Hubs there. Opp. at 23. While true, such locations are not likely to have information relevant to AGIS’s claims
`in the instant case. Notably, AGIS’s allegations in the present case are based on the allegedly infringing operations
`of Lyft’s applications and servers, which are unrelated to operations carried out at the Lyft Hub facilities located in
`WDTX.
`6 Zeke Koch, inventor of Pat. No. 7,383,316; Aaron Emigh and James Roskind, inventors of Pat. No. 7,330,112;
`Bruce Tognazzini, sole inventor of Pat. No. 6,853,849; Roger Melen, sole inventor of Pub. No. 2004/0148090; Joseph
`Karam, sole inventor of Pat. 7,831,917; Jonathan Trevor, Edward Ho, and Samantha Tripodi, inventors of Pat. No.
`7,450,003; Roland Geisler, inventor of Pub. No. 2005/0228860. See Exhibits 2–8.
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 13 of 16 PageID #: 2242
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`identified three times as many non-party witnesses subject to the subpoena power of its proposed
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`transferee court than AGIS has, this factor clearly favors transfer to NDCA.
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`3. “Cost of Attendance for Willing Witnesses”
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`Transfer to NDCA would be more convenient for the majority of the potential witnesses
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`(most of which will be from Lyft). Indeed, many of Lyft’s anticipated witnesses are in NDCA,
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`and thus, both monetary costs and “the personal costs associated with being away from work,
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`family, and community” would be minimized. Volkswagen, 545 F.3d at 317. Additionally, on
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`information and belief, at least one of AGIS’s experts for this case is located in central California.
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`4. “All Other Practical Problems That Make Trial . . . Easy, Expeditious and
`Inexpensive”
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`This factor is concerned with judicial economy, and particularly whether any other
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`practical problems that make trial, easy, expeditious, and inexpensive are promoted by transfer.
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`Volkswagen, 545 F.3d at 315; KT Imaging USA, LLC v. HP Inc., No. 4:20-cv-337, 2021 U.S.
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`Dist. LEXIS 35071, at *14 (E.D. Tex. Feb. 25, 2021). “[T]he existence of duplicative suits
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`involving the same or similar issues may create practical difficulties that will weigh heavily in
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`favor or against transfer.” Texas v. Google LLC, No. 4:20-CV-957-SDJ, 2021 U.S. Dist. LEXIS
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`96586, at *18 (E.D. Tex. May 20, 2021) (citing Seven Networks, LLC v. Google LLC, No. 2:17-
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`CV-00442-JRG, 2018 WL 4026760, at *12 (E.D. Tex. Aug. 14, 2018)).
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`Currently, AGIS is a defendant in two separate actions in NDCA. See WhatsApp LLC v.
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`AGIS Software Development LLC, No. 5:21-cv-03076-BLF (N.D. Cal. 2021); Smith Micro
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`Software, Inc. et al. v. AGIS Software Development LLC, 3:21-cv-03677-JD (N.D. Cal. 2021). In
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`both cases, the plaintiffs seek declaratory judgments concerning two of the patents AGIS asserts
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`against Lyft in the instant action. Transferring this case to WDTX would increase the overall
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`burden on the federal judiciary by 50% by increasing the number of courts handling overlapping
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 14 of 16 PageID #: 2243
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`issues from two to three, with much of the additional burden falling on the WDTX court which is
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`already handling an overwhelming number of patent cases. See infra § II(D)(5). Because no
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`actions involving this plaintiff or these patents currently exist in WDTX, this factor strongly
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`favors transfer to NDCA.
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`5. “Administrative Difficulties Flowing from Court Congestion”
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`When comparing congestion, courts frequently compare the average time to trial between
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`the proposed districts. See In re Genentech, 566 F.3d at 1347. But, as the Federal Circuit has
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`observed, this is the “most speculative” factor, as “case-disposition statistics may not always tell
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`the whole story.” Id. That is particularly true here, as WDTX has seen a surge of new filings
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`over the past 12 months with nearly one fifth of all patent cases filed in WDTX in 2020
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`(representing a 218% increase from 2019), the full effect of which would not yet be reflected in
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`backward-looking time-to-trial statistics. See Ex. 5. In consideration of the high volume of cases
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`currently being filed in WDTX and the likely delays, this factor favors transfer to NDCA.
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`6. “Local Interest in Having Localized Interests Decided at Home”
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`Neither party is based or has a significant presence in the WDTX. Whereas, Lyft
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`maintains its principal place of business and employs a significant number of people in NDCA
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`relevant to this lawsuit. Accordingly, this factor favors transfer to NDCA.
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`7. Familiarity of the Forum with the Law and Avoidance of Conflict of Laws
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`Because both WDTX and NDCA are familiar with federal patent law and decisions in
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`either district would be governed by Federal Circuit precedent, these two factors are neutral.
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`III. CONCLUSION
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`For the foregoing reasons, Lyft respectfully requests the Court dismiss this case for
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`improper venue or alternatively, transfer this case to the Northern District of California.
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 15 of 16 PageID #: 2244
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`Dated: June 15, 2021
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`Respectfully submitted,
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`By: /s/ Deron R. Dacus
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`Jeremy Taylor
`Baker Botts L.L.P.
`jeremy.taylor@bakerbotts.com
`101 California St., Suite 3600
`San Francisco, CA 94111
`Telephone: (415) 291-6200
`Facsimile: (415) 291-6300
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`Bethany R. Salpietra
`Baker Botts L.L.P.
`bethany.salpietra@bakerbotts.com
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: (214) 953-6500
`Facsimile: (214) 953-6503
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`Deron R. Dacus
`The Dacus Firm, P.C.
`ddacus@dacusfirm.com
`821 ESE Loop 323, Suite 430
`Tyler, Texas 75701
`Telephone: (903) 705-1117
`Facsimile: (903) 581-2543
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`Attorneys for Defendant Lyft, Inc.
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`Case 2:21-cv-00072-JRG-RSP Document 87 Filed 06/15/21 Page 16 of 16 PageID #: 2245
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
`document has been served on June 15, 2021, to all counsel of record who are deemed to have
`consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(d).
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`By: /s/ Deron R. Dacus
` Deron R. Dacus
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