Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 1 of 15 PageID #: 2451
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`v.
`
`
`T-MOBILE USA, INC., and T-MOBILE US,
`INC.,
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`v.
`
`
`LYFT, INC.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`
`v.
`
`
`UBER TECHNOLOGIES, INC. d/b/a UBER.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`v.
`
`
`WHATSAPP, INC.,
`
`
`Case No. 2:21-CV-00072-JRG-RSP
`(Lead Case)
`
`Case No. 2:21-CV-00024-JRG-RSP
`(Member Case)
`
`Case No. 2:21-CV-00026-JRG-RSP
`(Member Case)
`
`Case No. 2:21-CV-00029-JRG-RSP
`(Member Case)
`
`DEFENDANT WHATSAPP’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
`FIRST AMENDED COMPLAINT FOR IMPROPER VENUE
`
`
`
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`
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`

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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 2 of 15 PageID #: 2452
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`
`TABLE OF CONTENTS
`
`I.
`
`Introduction ..........................................................................................................................1
`
`II. WhatsApp Does Not Reside in this District ........................................................................1
`
`III. WhatsApp Does Not Have A “Regular and Established Place of Business” In This
`District..................................................................................................................................2
`
`A.
`B.
`
`The Like Way Data Center is not located in this District ........................................2
`The INAP Data Center is not a regular and established place of business of
`WhatsApp ................................................................................................................4
`1.
`AGIS does not dispute that WhatsApp did not use the INAP Data
`Center at the time of filing. ..........................................................................5
`WhatsApp had no regular, physical employee presence at the
`INAP Data Center. .......................................................................................6
`WhatsApp never conducted business from the INAP Data Center. ............8
`
`2.
`
`3.
`
`Venue Discovery Is Unnecessary ........................................................................................9
`
`Transfer Is Inapposite ........................................................................................................10
`
`Conclusion .........................................................................................................................10
`
`IV.
`
`V.
`
`VI.
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`
`
`
`i
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`

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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 3 of 15 PageID #: 2453
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`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`Page(s)
`
`Blitzsafe Texas LL v. Mitsubishi Elec. Corp.,
`No. 2:17-cv-00430-JRG, 2018 WL 2210686 (E.D. Tex. May 22, 2019) ..................................9
`
`Blue Spike, LLC v. Nook Dig., LLC,
`No. 6:16-CV-1361-RWS-JDL, 2017 WL 3263871 (E.D. Tex. July 28, 2017) .........................1
`
`In re Cray,
`871 F.3d 1355 (Fed. Cir. 2017)..................................................................................................2
`
`Cummins-Allison Corp. v. Glory Ltd.,
`No. 2-03-cv-358TJ, 2004 WL 1635534 (E.D. Tex. May 26, 2004) ........................................10
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ...................................................................................................................6
`
`In re Google LLC,
`949 F.3d 1338 (Fed. Cir. 2020)......................................................................................6, 7, 8, 9
`
`Hoffman v. Blaski,
`363 U.S. 335 (1960) ...................................................................................................................5
`
`Intellectual Ventures II LLC v. FedEx Corp.,
`No. 2:16-cv-980-JRG, 2017 WL 5630023 (E.D. Tex. Nov. 22, 2017) .....................................8
`
`Level Sleep LLC v. Dormeo North America, LLC,
`Case No. 2:18-cv-00120-RWS, 2019 WL 458467 (E.D. Tex. Feb. 1, 2019) ............................6
`
`Life360, Inc. v. Advanced Ground Information Systems, Inc.,
`Case No. 5:15-v-00151-BLF (N.D. Cal.) ................................................................................10
`
`Magnacoustics, Inc. v. Resonance Tech. Co.,
`No. 97-1247, 1997 WL 592863 (Fed. Cir. Sept. 25, 1997) .......................................................1
`
`Meyer v. Holley,
`537 U.S. 280 (2003) ...................................................................................................................7
`
`In re Nitro Fluids LLC,
`978 F.3d 1308 (Fed. Cir. 2020)................................................................................................10
`
`Peerless Network, Inc. v. Blitz Telecom Consulting, LLC,
`No. 17-cv-1725 (JPO), 2018 WL 1478047 (S.D.N.Y. Mar. 26, 2018) .............................6, 8, 9
`
`ii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 4 of 15 PageID #: 2454
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`Personal Audio, LLC v. Google, Inc.,
`280 F. Supp. 3d 922 (E.D. Tex. 2017) .......................................................................................4
`
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`137 S.Ct 1514 (2017). ................................................................................................................1
`
`Tinnus Enter. v. Telebrands Corp.,
`No. 6:17-cv-00170-RWS, 2018 WL 4560742 (E.D. Tex. Mar. 9, 2018) ..................................8
`
`Welch Sci. Co. v. Human Eng'g Inst., Inc.,
`416 F.2d 32 (7th Cir. 1969) ...............................................................................................5, 7, 8
`
`STATUTES
`
`28 U.S.C. § 1400(b) .........................................................................................................................1
`
`35 U.S.C. § 286 ................................................................................................................................8
`
`TEX. PROP. CODE ANN. § 12.001 (West 2003) .................................................................................2
`
`TEX. PROP. CODE ANN. § 13.002 (West 2003) .................................................................................2
`
`TEX. TAX CODE ANN. § 22.01 (West 2014) .....................................................................................4
`
`TREATISES
`
`Restatement (Third) of Agency § 1.01, cmt. d ................................................................................7
`
`Restatement (Third) of Agency § 1.03 ............................................................................................7
`
`
`
`
`iii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 5 of 15 PageID #: 2455
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`
`I.
`
`INTRODUCTION
`
`AGIS cannot establish venue for WhatsApp in this District. In its opposition, AGIS argues
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`venue based on the Like Way Data Center owned by Facebook and a second data center owned by
`
`INAP. But AGIS relies on inaccurate information, unsupported statements, and misinterpretation
`
`of agency law in attempts to establish venue in this District. Dkt. 82 (“Opp. Br.”) at 7-15.
`
`Consequently, these arguments fail. First, contrary to AGIS’ contentions, the Facebook Like Way
`
`Data Center is wholly located in Tarrant County, which is not part of this judicial district.
`
`Inaccurate maps expressly acknowledged as unsuitable for legal purposes cannot change this fact.
`
`Second, the INAP Data Center in Plano, Texas is not a regular and established place of business
`
`of WhatsApp or Facebook. Critically, Facebook terminated use of the INAP Data Center as a co-
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`location facility more than three years ago in 2018, and therefore the INAP Data Center cannot
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`serve as a place of business of WhatsApp under any established legal theory.
`
`AGIS further provides significant background on the Court’s experience with the asserted
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`patents and other litigants in this District. But this is irrelevant in establishing proper venue.
`
`Venue decisions for other actions or against other defendants cannot form the basis of any facts to
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`establish proper venue for WhatsApp in this action. See Blue Spike, LLC v. Nook Dig., LLC, No.
`
`6:16-CV-1361-RWS-JDL, 2017 WL 3263871, at *3 (E.D. Tex. July 28, 2017) (quoting
`
`Magnacoustics, Inc. v. Resonance Tech. Co., No. 97-1247, 1997 WL 592863, at *1 (Fed. Cir. Sept.
`
`25, 1997)) (explaining that venue and jurisdiction requirements must be met as to each defendant).
`
`Accordingly, venue in this District is improper and the case should be dismissed.
`
`II. WHATSAPP DOES NOT RESIDE IN THIS DISTRICT
`
`AGIS does not dispute that, as a matter of law, WhatsApp does not reside in this District
`
`and there is no basis for venue under the first prong of the patent venue statute. TC Heartland
`
`LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct. 1514, 1517 (2017); see also 28 U.S.C. § 1400(b).
`
`1
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`

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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 6 of 15 PageID #: 2456
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`III. WHATSAPP DOES NOT HAVE A “REGULAR AND ESTABLISHED PLACE OF
`BUSINESS” IN THIS DISTRICT
`
`AGIS does not (and cannot) provide credible evidence to satisfy the three requirements of
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`the second prong of the patent venue statute. In re Cray, 871 F.3d 1355, 1360 (Fed. Cir. 2017).
`
`First, AGIS cannot establish that WhatsApp or Facebook has a physical place in this District as of
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`the time of filing of the complaint. The Like Way Data Center is located in Tarrant County, which
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`is in the Northern District of Texas. And while Facebook previously entered a contract with INAP
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`to house servers in INAP’s Plano location, Facebook terminated its use more than three years ago.
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`Second, the INAP Data Center was not a “regular and established” place of business. Neither
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`WhatsApp nor Facebook maintained any regular, physical employee presence at the INAP Data
`
`Center, nor can the previous presence of Facebook servers that were maintained by, but did not
`
`otherwise interact with, humans serve as employee substitutes. Last, the INAP Data Center was
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`not a place of “business” of WhatsApp. Neither WhatsApp nor Facebook offered any products or
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`services, developed any software, provided any direct customer service, or otherwise conducted
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`business from the INAP Data Center.
`
`A.
`
`The Like Way Data Center is not located in this District
`
`The Like Way Data Center is not located in this District. As discussed in WhatsApp’s
`
`opening brief, the Like Way Data Center is wholly located in Tarrant County. Mot. at 3, 6-8. The
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`official property boundaries are governed by a combination of legal documents, including deeds,
`
`easements, and a land plat. Id.; see also TEX. PROP. CODE ANN. § 12.001, 13.002 (West 2003). A
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`professional land surveyor also provided a certified land plat indicating the property lines. Mot.
`
`at 6. Each of these documents confirm the Like Way Data Center is physically located in Tarrant
`
`County. Id. at 6-8. AGIS relies on no official or legal documentation to prove otherwise.
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`2
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`To the contrary, AGIS fails to address official county records at all. Instead, AGIS relies
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`on maps that inaccurately portray the county lines with respect to the Like Way Data Center. But
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`these maps come from websites that explicitly state the information is not “suitable for legal
`
`purposes.” Thus, they cannot, and should not, be relied on to establish venue—a legal purpose.
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`Additionally, AGIS makes unsupported statements about the location of Facebook’s expansion of
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`the data center. Opp. Br. at 8. While Facebook may continue to expand on its property, it is
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`nonetheless wholly located in Tarrant County. See, e.g., Ex. A, https://fortworthbusiness.com/
`
`technology/facebook-fort-worth-expansion/ (thanking Tarrant County for helping to grow
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`Facebook’s presence in the area). Further, the shape of any buildings on the property does not
`
`matter for the purposes of establishing property boundaries as AGIS incorrectly asserts. Opp. Br.
`
`at 8. Official county records, namely the deeds and land plat, show the correct and legal boundaries
`
`of the entire Facebook Like Way Data Center, including the land and all buildings located on the
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`land, all of which are located in Tarrant County. Mot. at 6-8.
`
`AGIS suggests that property taxes paid to Denton County are evidence of a physical
`
`location in East Texas, but this is incorrect. The Denton County property tax records website
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`indicates itself that the 4500 Like Way address is located in Tarrant County. The account numbers
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`associated with the property include the letters “TAR,” which corresponds to Tarrant County. In
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`contrast, buildings that are actually located in Denton County are issued account numbers with the
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`letters “DEN.” Compare Ex. B (showing accounts for 4500 Like Way location) with Ex. C
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`(showing accounts for locations on Henrietta Creek in Denton County). AGIS also ignores several
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`statements on behalf of Northwest Independent School District stating that Denton County handles
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`all tax collections. See, e.g., Ex. D (“The Denton County Tax Assessor/Collector, who handles all
`
`of NISD tax collections, issued amended tax statements”). Additionally, Tarrant County Appraisal
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`3
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`District, not Denton County, assesses property tax on the market value of the real property located
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`at 4500 Like Way. Ex. E (showing a building icon to indicate real property); Ex. F (describing the
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`property as “Alliance Gateway North Block 3 Lot 7R2,” which corresponds to the land plat).
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`AGIS also relies on property tax paid by Facebook in Collin County1 as evidence of
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`presence in East Texas. But these taxes paid to Collin County are for business personal property.
`
`Ex. G (defining business personal property, or BPP, as “anything that is not real property used to
`
`generate income”). All businesses are required by Texas state law to file a rendition listing tangible
`
`personal property and is considered taxable under local rules. See TEX. TAX CODE ANN. § 22.01
`
`(West 2014). Facebook filed a rendition in 2017 and 2018 listing computer equipment used at the
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`INAP Data Center. This personal property was assessed under the local property tax laws and
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`Facebook paid the required tax. Exs. H, I (showing market value on personal property). Thus, the
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`property tax paid to Collin County is for personal property, not real property, and therefore not
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`relevant to this analysis. As stated in WhatsApp’s opening brief (and ignored by AGIS), taxes
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`paid for any reason other than for real property are legally insufficient to establish venue. See
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`Personal Audio, LLC v. Google, Inc., 280 F. Supp. 3d 922, 932-33 (E.D. Tex. 2017) (holding that
`
`paying taxes on personal property does not establish a “regular and established place of business”
`
`because the test is whether real property is located in the district); see also Mot. at 8. Therefore,
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`the taxes paid to Denton County for the NISD and Collin County for business personal property
`
`are insufficient for venue in this District.
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`B.
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`The INAP Data Center is not a regular and established place of business of
`WhatsApp
`
`
`1 AGIS states that “[WhatsApp] pays taxes in Denton County for the BPP at INAP Data Center.”
`Opp. Br. at 9. This appears to be a typographical error as the attached exhibit discusses Collin
`County and the INAP Data Center is located in Collin County. Dkt. 82-6.
`
`4
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`1.
`
`AGIS does not dispute that WhatsApp did not use the INAP Data
`Center at the time of filing.
`
`AGIS cannot establish the INAP Data Center was a “regular and established place of
`
`business” of WhatsApp at the time the suit was filed. AGIS does not dispute that neither Facebook
`
`nor WhatsApp has used the INAP Data Center since 2018—years before the filing of the January
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`2021 complaint in this case.2 Opp. Br. at 9-14. Indeed, neither Facebook nor WhatsApp used any
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`facility in the Eastern District of Texas since the termination in 2018. Mot., Davis Decl. ¶ 16.
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`Because venue is determined at the time of filing the complaint, AGIS cannot establish venue
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`based on the INAP Data Center. 3
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`AGIS does not address the termination timing because it cannot; this fact is dispositive
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`under any legal theory. Indeed, under an alternative test to determine the proper time period for
`
`assessing venue set forth by the Seventh Circuit in Welch Sci. Co. v. Human Eng’g Inst., Inc. (not
`
`yet addressed by the Federal Circuit or the Supreme Court4), “venue is properly lodged in the
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`district if the defendant had a regular and established place of business at the time the cause of
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`action accrued and suit is filed within a reasonable time thereafter.” 416 F.2d 32, 35 (7th Cir.
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`1969). The Welch decision only underscores the lack of venue for WhatsApp. First, the cause of
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`action (patent infringement) did not accrue until the filing of the complaint. Specifically, AGIS
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`only asserts indirect infringement against WhatsApp,5 and AGIS provided no pre-suit notice of the
`
`
`2 AGIS discusses the INAP Data Center and its relationship with Facebook and WhatsApp in the
`present tense, however, the agreement was terminated in 2018. Neither Facebook nor WhatsApp
`have a current agreement with the INAP Data Center in Plano, Texas.
`3 AGIS fails to rebut WhatsApp’s cited authority that the time of filing of the Complaint is the law
`that controls for determining proper venue. Mot. at 9.
`4 Rather, Supreme Court authority has consistently assessed venue at the “time of filing.” See Mot.
`at 9 (citing Hoffman v. Blaski, 363 U.S. 335, 343 (1960)).
`5 In a letter, WhatsApp specifically requested that AGIS identify any allegations of direct
`infringement by June 14. Ex. J. AGIS provided no response.
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 10 of 15 PageID #: 2460
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`asserted patents to WhatsApp. See Dkt. 1 (Original Complaint) and Dkt. 47 (First Amended
`
`Complaint); see Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765-66 (2011) (holding
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`indirect infringement requires knowledge of the relevant patent). Thus, no infringement accrued
`
`during Facebook’s use of the INAP Data Center.
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`Second, even if the alleged infringement did accrue during the use of the INAP Data Center
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`(which it did not), Facebook terminated its use more than 32 months prior to the initiation of this
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`case. This fact is fatal. This Court has previously determined that waiting just four months after
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`the defendant ceased operations in the district before filing a complaint did not constitute “a
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`reasonable time thereafter” under the Welch test. See Level Sleep LLC v. Dormeo North America,
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`LLC, Case No. 2:18-cv-00120-RWS, 2019 WL 458467, at *3 (E.D. Tex. Feb. 1, 2019).
`
`Accordingly, under any legal theory, the INAP Data Center has never been, and is certainly
`
`not now, a regular and established place of business of WhatsApp or Facebook.
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`2. WhatsApp had no regular, physical employee presence at the INAP
`Data Center.
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`Even if Facebook had not terminated its use of the INAP Data Center, it was never a regular
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`and established place of business of WhatsApp. There were no Facebook or WhatsApp employees
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`who maintained a “regular, physical presence” at the INAP Data Center. In re Google LLC, 949
`
`F.3d 1338, 1345 (Fed. Cir. 2020). To the extent that any WhatsApp or Facebook employee
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`performed any maintenance on servers located at the INAP Data Center, these employees traveled
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`to Plano from where they regularly worked outside the District. Mot., Davis Decl., ¶ 14.
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`AGIS attempts to salvage its position by arguing that the Facebook servers can act as
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`WhatsApp’s agents. Opp. Br. at 10-11. They cannot. See, e.g., Peerless Network, Inc. v. Blitz
`
`Telecom Consulting, LLC, No. 17-cv-1725 (JPO), 2018 WL 1478047 (S.D.N.Y. Mar. 26, 2018)
`
`(acknowledging the “human-centered definition of ‘place of business’” and holding that equipment
`
`6
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`

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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 11 of 15 PageID #: 2461
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`in a third party facility is not a “place of business”); Rensselaer Polytechnic Inst., 2019 WL
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`3755446, at *11-12 (N.D.N.Y. Aug. 7, 2019) (explaining that the relevant question is whether the
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`Defendant has agents conducting business at the location).
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`First, AGIS argues “WhatsApp servers can be considered agents of WhatsApp” based on
`
`incorrect interpretations of the law. Opp. Br. at 11. While the Federal Circuit left open a question
`
`on whether a machine could be an agent for purposes of venue, the Court acknowledged that the
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`venue and service provisions are “expressly linked.” In re Google, 949 F.3d at 1344; see also
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`Rensselaer Polytechnic Inst. v. Amazon, 2019 WL 3755446, at *11-12 (explaining that venue and
`
`service provisions must be read together). The Federal Circuit explained that under the service
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`statute, the character of a business assumes a regular, physical presence of an agent such that
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`“service . . . may be made by service upon the agent . . . conducting such business.” In re Google,
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`949 F.3d at 1344. Any assumptions in interpretation under the service statute “must govern the
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`venue statute.” Id. And the Facebook servers previously housed at the INAP Data Center could
`
`not have been served.
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`Next, relying on unsupported statements not from, or attributable to, INAP, Facebook, or
`
`WhatsApp, AGIS argues “servers in the INAP Data Center act as agents of WhatsApp to carry out
`
`certain of WhatsApp’s key business activities.” Opp. Br. at 12-13. But as AGIS acknowledges,
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`the essential elements of agency are “(1) the principal’s ‘right to direct or control’ the agent’s
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`actions, (2) ‘the manifestation of consent by [the principal] to [the agent] that the [agent] shall act
`
`on his behalf,’ and the “consent by the [agent] to act.” In re Google, 949 F.3d at 1345 (quoting
`
`Meyer v. Holley, 537 U.S. 280, 286 (2003)). A server or other computing equipment cannot
`
`consent to act on behalf of the principal. See Restatement (Third) of Agency § 1.01, cmt. d
`
`(explaining that “agency is a consensual relationship”), § 1.03 (defining manifestation as an
`
`7
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`

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`express act); see also Peerless Network, 2018 WL 1478047, at *4-5 (acknowledging the “human-
`
`centered definition of ‘place of business’”). Any agreements between WhatsApp and INAP do
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`not, and cannot, provide consent to an agency relationship on behalf of computing equipment.
`
`Finally, AGIS relies on an archived version of WhatsApp privacy policy issued in 2012,
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`prior to WhatsApp’s 2014 acquisition by Facebook, in support of its position that the Facebook
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`“servers log certain general information that our application sends” and to attempt to establish
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`venue. Opp. Br. at 10-11. This decade-old evidence is deficient, not only due to its age, but
`
`especially because the WhatsApp privacy policy has been updated, and the 2012 policy does not
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`accurately reflect activities occurring in this District at the time of filing the complaint. Even if
`
`AGIS could allege pre-suit infringement (which it cannot), the 2012 time period is a half-decade
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`prior to the October 2017 launch of the accused “Live Location” feature and outside the relevant
`
`six-year window under 35 U.S.C. § 286. The WhatsApp privacy policy from nearly ten years ago
`
`(before Facebook acquired WhatsApp) cannot establish venue in this District for WhatsApp.6
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`3. WhatsApp never conducted business from the INAP Data Center.
`
`The INAP employees maintained Facebook equipment housed at the location; they did not
`
`conduct WhatsApp business. “[M]aintenance activities cannot, standing alone, be considered the
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`conduct of [WhatsApp’s] business.” In re Google, 949 F.3d at 1346. Activities that are merely
`
`connected to, but do not constitute, WhatsApp’s conduct of business are excluded from the
`
`
`6 AGIS’ cases are inapposite. In Rensselaer Polytechnic Institute v. Amazon.com, Inc., No. 1:18-
`cv-00549 (BKS/CFH), 2019 WL 3755446, at *3 (N.D.N.Y. Aug. 7, 2019), Amazon had physical
`lockers that served as the place of business, not servers. And AGIS’ other two citations have no
`relation to the facts in this case. See Tinnus Enter. v. Telebrands Corp., No. 6:17-cv-00170-RWS,
`2018 WL 4560742, at *5-6 (E.D. Tex. Mar. 9, 2018) (defendant paid agents “to monitor, clean,
`restock, and affix price signage” at stores throughout the district); Intellectual Ventures II LLC v.
`FedEx Corp., No. 2:16-cv-980-JRG, 2017 WL 5630023, at *7 (E.D. Tex. Nov. 22, 2017) (relying
`on stores and facilities operated by defendants for business purposes to establish venue).
`
`8
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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 13 of 15 PageID #: 2463
`
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`interpretation of a “regular and established” place of business for venue. Id. at 1347; see also
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`Peerless Network, 2018 WL 1478047, at *4 (explaining that a “place of business” is a location
`
`where “products are made, customers are served, or business decisions are made”). AGIS counters
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`that “WhatsApp controls the INAP Data Center for its own purposes, specifying the method by
`
`which the INAP Data Centers produce, store, and furnish information related to its messaging
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`services as determined by WhatsApp.” Opp. Br. at 13. Again, AGIS relies on unsupported
`
`statements. The INAP Data Center did nothing more than house and maintain servers, which the
`
`Federal Circuit has already found do not constitute “business” for companies like WhatsApp. In
`
`re Google, 949 F.3d at 1340 (“Maintaining equipment is meaningfully different from … the actual
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`producing, storing, furnishing to customers of what the business offers.”); see also Mot. at 10-11.
`
`IV. VENUE DISCOVERY IS UNNECESSARY
`
`AGIS contends that if “the Court finds that venue is not proper over WhatsApp,” that it
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`should be permitted to conduct venue discovery. Opp. Br. at 14-15. But no amount of discovery
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`can change the undisputed, dispositive facts that establish venue is not proper for WhatsApp in
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`this District. Blitzsafe Texas LL v. Mitsubishi Elec. Corp., No. 2:17-cv-00430-JRG, 2018 WL
`
`2210686, at * 3 (E.D. Tex. May 22, 2019) (“[J]urisdictional discovery should [] be denied where
`
`it is impossible that the discovery ‘could .. add[] any significant facts’ that might bear on the
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`jurisdictional determination.”). WhatsApp has provided surveyed land plats that legally establish
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`that the Like Way Data Center is entirely in Tarrant County. Additional unofficial maps and blurry
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`photographs will not change that. Further, the undisputed declaration confirming that Facebook
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`terminated its use of the INAP Data Center by April 2018 forecloses INAP as a basis for venue
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`under any legal theory. Venue discovery cannot alter that fact either.
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`Indeed, WhatsApp specifically requested that AGIS serve venue discovery by June 14. Ex.
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`J. AGIS did not, because there is no venue discovery that will change these facts. Accordingly,
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`9
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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 14 of 15 PageID #: 2464
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`the Court should deny AGIS’ request to delay the Court’s decision on this Motion; AGIS should
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`not be allowed to engage in dilatory and pointless venue discovery, particularly when it had the
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`full opportunity to do so and chose not to.
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`V.
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`TRANSFER IS INAPPOSITE
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`WhatsApp filed a Complaint for Declaratory Judgment against AGIS in the Northern
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`District of California on April 27, 2021, and the case is currently pending before Judge Beth
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`Labson Freeman who previously presided over Life360, Inc. v. Advanced Ground Information
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`Systems, Inc., Case No. 5:15-v-00151-BLF (N.D. Cal.). Thus, should the Court find that venue is
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`improper, dismissal is appropriate because the claims are already pending in another forum.
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`AGIS contends that if venue is improper the case should be transferred to the Northern
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`District of Texas or Western District of Texas. Opp. Br. at 15-18. But the law is clear that the
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`claims must proceed in the first action filed with proper venue unless sufficiently compelling
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`circumstances exist. See In re Nitro Fluids LLC, 978 F.3d 1308, 1311 (Fed. Cir. 2020)
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`(“sufficiently compelling circumstances” must exist “to avoid the [first-to-file] rule’s
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`application”). There are no such compelling circumstances here, particularly where no
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`relationship with the plaintiff or patents exist in North Texas or West Texas, and the courts in these
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`districts have no familiarity with the issues. Opp. at 15-18. Importantly, “the ‘first-to-file’ rule
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`gives the first-filed court the responsibility to determine which case should proceed.” Cummins-
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`Allison Corp. v. Glory Ltd., No. 2-03-cv-358TJ, 2004 WL 1635534, at *3 (E.D. Tex. May 26,
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`2004). Thus, to the extent that AGIS seeks transfer to the Northern District of Texas or Western
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`District of Texas, it is the responsibility of the Northern District of California to decide.
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`VI. CONCLUSION
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`For the foregoing reasons, WhatsApp respectfully requests that the Court dismiss this case
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`for improper venue.
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`10
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`Case 2:21-cv-00072-JRG-RSP Document 88 Filed 06/16/21 Page 15 of 15 PageID #: 2465
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`Date: June 16, 2021
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`Respectfully submitted,
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`/s/ Lisa K. Nguyen, with permission by
`Michael E. Jones
`
`Michael E. Jones
`SBN: 10929400
`Patrick C. Clutter
`SBN: 24036374
`POTTER MINTON, PC
`110 North College, Suite 500
`Tyler, Texas 75702
`Tel: 903-597-8311
`Fax: 903-593-0846
`mikejones@potterminton.com
`patrickclutter@potterminton.com
`
`Lisa K. Nguyen
`Richard G. Frenkel
`Clara Wang
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025-1008
`Tel: (650) 328-4600 / Fax: (650) 463-2600
`lisa.nguyen@lw.com
`rick.frenkel@lw.com
`clara.wang@lw.com
`
`Alan Billharz
`Tiffany C. Weston
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`Tel: (202) 637-2200 / Fax: (202) 637-2201
`alan.billharz@lw.com
`tiffany.weston@lw.com
`
`Attorneys for Defendant WhatsApp LLC
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`11
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