Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 1 of 11 PageID #: 2519
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
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`Defendant.
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Case No. 2:21-cv-00024-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:21-cv-00072-JRG
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`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S SUR-REPLY
`IN FURTHER OPPOSITION TO DEFENDANT LYFT, INC.’S
`MOTION TO DISMISS FOR IMPROPER VENUE (DKT. 30)
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`LYFT, INC.,
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`Plaintiff,
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`v.
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`Defendant.
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 2 of 11 PageID #: 2520
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”), by and through its
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`undersigned counsel, hereby submits this sur-reply in opposition to Defendant Lyft, Inc.’s
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`(“Defendant” or “Lyft”) Motion to Dismiss for Improper Venue (Dkt. 30) (the “Motion”).
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`AGIS has established that venue is proper over Lyft in this District pursuant to 28 U.S.C.
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`§ 1400(b) and controlling Federal Circuit precedent, In re Cray Inc., 971 F.3d 1355 (Fed. Cir.
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`2017) and In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020). The facts show that Lyft conducts
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`business in this District by putting into practice the Lyft platform in this District and charging
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`customers of this District for rides in Lyft vehicles operated by Lyft drivers in the District and by
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`controlling and/or possessing a physical Lyft Express Drive location in the District for Lyft drivers
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`and personnel in the District. Lyft’s Reply fails to show otherwise. Alternatively, AGIS has shown
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`that venue discovery is warranted to uncover additional facts that are relevant and material to the
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`venue inquiry. Thus, Lyft’s Motion must be denied.
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`In the event the Court finds that venue is not proper, and that transfer is warranted under
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`28 U.S.C. § 1406, AGIS respectfully requests that this Court transfer this action to the Western
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`District of Texas (“WDTX”) instead of the Northern District of California (“NDCA”).
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`I.
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`LYFT’S MOTION MUST BE DENIED
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`Lyft maintains regular and established places of business in this District. The Express
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`Drive Location satisfies the second Cray factor, requiring a “regular and established place of
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`business,” because, as pled in AGIS’s Complaint, they are places from which Lyft “actually
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`engage[s]” in business from the physical location in the District.” Dkt. 64, “Resp.” at 9-14. As
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`submitted by AGIS, Lyft’s website lists the “Lyft Express Drive Plano” as a pick-up location. Id.
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`at 9-14. The Lyft Express Drive Plano is a physical place in this District that Lyft exerts control
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`over. See id. at 11-12. Moreover, Lyft misstates the standards under Cray and Google—a
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`defendant is not required to (1) lease or compensate another party for use of space; and (2) have
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 3 of 11 PageID #: 2521
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`employees that staff the location. Id. at 9 (“A defendant is not required to own or lease the place
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`if it exercises other attributes of possession or control over the place (id.) and the statute can ‘be
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`satisfied by any physical place that the defendant could ‘possess[] or control.’”) (citing In re
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`Google, 949 F.3d at 1343).
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`Similarly, Lyft alleges that because a vehicle can “easily move,” it cannot establish a
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`regular and established place of business. Again, these are physical locations from which the
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`business of Lyft is conducted, which is the entire business model of Lyft. Resp. at 9. Nonetheless,
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`the Federal Circuit has stated that “a fixed physical location in this district is not a prerequisite to
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`proper venue.” Id. at 10 (citing In re Cray, 871 F.3d at 1362). Contrary to Lyft’s contentions,
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`AGIS has set forth detailed responses to Lyft’s Motion regarding Lyft’s vehicles. See id. at 10-
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`11. Moreover, there is no dispute that Lyft conducts business from these locations where Lyft
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`authorizes the matching of drivers and riders (id. at 10) and drivers cannot provide Lyft’s services
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`within this District without first meeting at least Lyft’s driver requirements, and state and local
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`requirements. Id. Additionally, AGIS has demonstrated the level of ratification and control
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`exerted by Lyft over the Lyft vehicles and drivers, including the extensive vehicle requirements,
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`terms and services, and the driver addendum by which the vehicles and drivers must enter and
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`abide in order to operate a vehicle on behalf of Lyft. See id. at 15. A driver cannot drive or connect
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`with a rider without the explicit authorization of Lyft. Id. Lyft regulates the use of its logo, brand,
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`and emblem by its drivers and vehicles (id. at 16), all drivers “represent the brand and help to
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`create goodwill,” (id.), and Lyft offers its “Driver Services” and “Mobile Services” through which
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`Lyft offers maintenance, service and repairs, diagnostic inspections, driver support, and other
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`services for its vehicles. Id. Accordingly, Lyft’s vehicles are regular and established places of
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`business of Lyft.
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 4 of 11 PageID #: 2522
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`In addition, the Denton County Transportation Authority (“DCTA”) has partnered with
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`Lyft to “allow certified Lewisville Access customers the ability to travel from the city of Lewisville
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`to designated geofenced zones in Flower Mound for medical related trips.” Ex. V, Lewisville
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`Access to Flower Mound Lyft Program. Lyft, through the DCTA, provides three “zones,” (id.),
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`and users can select the “designated Lewisville Access to Flower Mound Lyft Zone.” Id. Once a
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`ride is requested through Lyft, “Lyft will contact nearby drivers, and provide customers
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`information on the expected arrival time, driver identification, and vehicle information,” and “Lyft
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`will text the customer when the driver is nearby and ready for pickup.” Id. Lyft’s partnership with
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`the DCTA also extends to a “Highland Village Lyft Zone” which provides Lyft customers with
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`transit options within Highland Village and North Lewisville, which are located within this
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`District. Ex. W, DCTA Highland Village and North Lewisville; see Ex. X, White Paper on TNCs
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`and Transit Mobility (“The Denton County Transportation Authority launched a partnership with
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`Lyft in 2018 in an effort to continue providing more transit options for those traveling within
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`Highland Village and north Lewisville.”). DCTA “chose to create a common geofenced area to
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`qualify trips within the specified zone,” based on “Lyft’s user interface platform.” Id. Lyft also
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`partners with the University of North Texas (“UNT”) to provide rides on campus to UNT students
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`in the “UNT Lyft Zone.” Ex. Y, UNT/Lyft. UNT maintains four campuses, including three
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`located in this District: Denton, Frisco, and McKinney. Ex. Z, UNT Locations. These “Lyft
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`Zones” are (1) physical places in this District; (2) regular and established places of business within
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`this District; and (3) places of business of Lyft.
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`With regard to Lyft’s allegations regarding the ’838 Patent, AGIS has adequately pled acts
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`of infringement in this District as they relate to the claims of the ’838 Patent. See Resp. at 16-20.
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`As stated in AGIS’s opposition, AGIS has sufficiently pled direct and indirect infringement with
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 5 of 11 PageID #: 2523
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`respect to the ’838 Patent and AGIS is not required to set forth in detail its infringement theories
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`at this stage. See id. at 19-20 (“However, ‘[t]he issue of infringement is not reached on the merits
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`in considering venue requirements.’”) (citing Seven Networks LLC v. Google LLC, 315 F. Supp.
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`3d 933, 942-43 (E.D. Tex. 2018)).
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`Notably, Lyft submits that it does not operate any servers in Texas (Dkt. 87 “Reply” at 8),
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`however does not dispute that it relies on third-party servers, including AWS servers. Id. at 9.
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`Nonetheless, AGIS has alleged that Lyft and its customers and/or end-users have performed at
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`least one step of the ’838 Patent claims in this District and some portion of Lyft’s infringing
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`products, systems, and/or servers is located in this District. Id. at 19. Accordingly, venue is proper
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`in this District with respect to the ’838 Patent.
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`To the extent the Court finds that Lyft does not reside in this District, AGIS respectfully
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`requests that it be permitted to conduct venue discovery prior to a determination on the Motion “to
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`allow the adversarial process to aid the Court in making a fact-specific decision on a well-
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`developed factual record.” Mallinckrodt IP v. B. Braun Med. Inc., No. 17-365-LPS, 2017 WL
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`6383610, at *3 (D. Del. Dec. 14, 2017). While Lyft contends that venue discovery is not necessary,
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`the Court has discretion to allow targeted venue discovery. See Uniloc 2017 LLC v. Riot Games,
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`Inc., No. 2:19-CV-00223-JRG, 2020 WL 1158611, at *3 (E.D. Tex. Mar. 10, 2020) (“[T]he Court
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`is of the opinion that Uniloc should be permitted to take additional venue discovery. It is therefore
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`ORDERED that Uniloc has leave to conduct discovery in the following, narrowly tailored manner
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`to facilitate fair and full adjudication of the parties’ venue disputes.”) (emphasis added); see
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`Blitzsafe Texas, LLC v. Mitsubishi Electric Corp., No. 2:17-CV-00430, 2019 WL 2210686, at *3
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`(E.D. Tex. May 22, 2019) (“[J]urisdictional discovery should only be denied where it is impossible
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`that the discovery ‘could . . . add[] any significant facts’ that might bear on the jurisdictional
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 6 of 11 PageID #: 2524
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`determination.”) (emphasis added). Here, Lyft does not allege that it is impossible that discovery
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`would yield relevant facts that may bear on the venue determination. Id. (“Put another way,
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`jurisdictional discovery should typically be granted unless ‘no amount of information . . . would
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`strengthen’ the movant’s jurisdictional claims.”).
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`Venue discovery would provide additional evidence regarding Lyft’s servers and networks,
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`and the nature of Lyft’s relationships and agreements with its Express Drive locations and any
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`partners regarding Lyft’s servers and networks, including but not limited to AWS servers. Such
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`agreements would shed light on Lyft’s relationships with respect to offering its products and
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`services in this District. See Uniloc 2017 LLC, 2020 WL 1158611, at *3; Ultravision Techs., LLC
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`v. GoVision, LLC, No. 2:18-cv-00100-JRG-RSP, 2020 WL 887754, at *2 (E.D. Tex. Feb. 24,
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`2020). Accordingly, AGIS has specifically identified numerous additional facts that are relevant
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`and material to the venue inquiry, including non-public information in Lyft’s possession.
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`II.
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`IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED
`TO WDTX
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`Because venue is proper, and alternatively, venue discovery is warranted, Lyft’s Motion
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`should be denied. However, in the event that the Court finds that transfer is warranted, AGIS
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`respectfully requests that this action be transferred to the WDTX, where venue over Lyft is
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`undisputed. AGIS has demonstrated that, based on the §1404 convenience factors, the WDTX is
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`clearly more convenient than the NDCA. Resp. at 21-26.
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`Lyft’s reliance on Quartz Auto Techs. LLC v. Lyft, Inc., is unavailing, where the plaintiff
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`relied upon pendent venue to establish venue with regard to one of the Patents-in-Suit. No. 1:20-
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`CV-00719-ADA, 2021 WL 1177886, at *3 (W.D. Tex. Mar. 29, 2021) (“Quartz argues that
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`pendent venue over the ’215 patent is proper in this case because the other four asserted patents
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`are properly venued under the more restrictive provisions of § 1400(b) and there is a common
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 7 of 11 PageID #: 2525
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`nucleus of operative facts among each of the infringement claims.”). Unlike Quartz Auto Techs.,
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`AGIS does not rely on pendent venue to establish venue regarding the ’838 Patent and has set forth
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`separate bases to demonstrate that venue is proper regarding the ’838 Patent. Notably, while Lyft
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`asserts that venue is improper in the WDTX, it did not move to dismiss for improper venue nor
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`allege that venue is improper with regard to the remaining patents in Quartz Auto Tech.
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`Specifically, in Lyft’s Motion, it requests that this Court transfer this case to “another
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`district in which venue is proper as to Lyft.” Contrary to Lyft’s allegations, AGIS has established
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`that this case could have been brought in the WDTX where Lyft maintains an office in Austin,
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`Texas, Lyft “Hubs,” Driver Vehicle Services, and Express Drive locations. Rather than address
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`each of these locations, Lyft misguides this Court by alleging AGIS relies on job postings to
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`establish a regular and established place of business. Lyft does not and cannot dispute that it has
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`significant connections to the WDTX with access to employees and other sources of proof. Resp.
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`at 21-26. While Lyft submits that its sources of proof are located in the NDCA, AGIS’s
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`headquarters and data center, along with its sources of proof, are located nearby in Marshall. Resp.
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`at 22-25. This Court has also stated that “given the realities of today’s digital world where what
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`once would have been boxes and boxes of documents can now be delivered with the click of a
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`mouse this factor’s weight is at most minimal.” Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-
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`00118-JRG, 2019 WL 6344267, at *4 (E.D. Tex. Nov. 27, 2019). Moreover, AGIS’s sister entity
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`and third-party AGIS, Inc., has an office in WDTX with relevant sources of proof. Resp at 23.
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`Accordingly, this factor does not favor transfer.
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`AGIS has also shown that its witnesses would find it much more convenient to travel to
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`Texas than California. Id. at 23-25. Where “[t]he convenience of the witnesses is probably the
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`single most important factor in a transfer analysis,” (Quest NetTech, 2019 WL 6344267, at *5)
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 8 of 11 PageID #: 2526
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`Lyft fails to specifically identify a single witness from which the Court “should assess the
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`relevance and materiality of the information the witness may provide.” In re Genentech, Inc., 556
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`F.3d 1338, 1343 (Fed. Cir. 2009). In contrast, AGIS has specifically identified witnesses with
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`relevant knowledge. Similarly, AGIS identified several non-party witnesses, including but not
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`limited to David Sietsema, who is located in this District, and Eric Armstrong, who lives and works
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`in Allen, Texas. See Resp. at 24-25. Lyft identifies nine prior art witnesses. Reply at 12.
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`However, “there is not clear indication that these witnesses will be relevant merely because they
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`authored prior art” and Lyft has shown nothing further to show their relevance. See Quest NetTech,
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`2019 WL 6344267, at *5. Further, Lyft fails to demonstrate that these witnesses would be
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`unwilling to travel to the WDTX. See id. Accordingly, both of these factors do not weigh in favor
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`of transfer and Lyft has failed to show that the convenience of litigating in NDCA, which is far
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`from AGIS, AGIS, Inc., its witnesses, and its sources of proof, outweighs litigating in WDTX,
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`where Lyft itself maintains including numerous regular and established places of business.
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`Compare Resp. at 22-25 with Reply at 11-13; see Vocalife LLC v. Amazon.com, Inc., No. 2:19-cv-
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`00123-JRG, 2019 WL 6345191, at *6 (E.D. Tex. Nov. 27, 2019). and a balance of the factors
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`establishes that the WDTX is clearly more convenient for all parties.
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`The WDTX has a substantial local interest in adjudicating this dispute where AGIS is a
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`Texas entity with its only office and data center located nearby in the EDTX, and its sister entity,
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`AGIS, Inc. maintains an office in WDTX. See Resp. at 25-26. As demonstrated, the WDTX also
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`has a substantial local interest where it maintains numerous regular and established places of
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`business. Moreover, AGIS has submitted the Federal Judicial Statistics which indicate that the
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`time from filing to trial in WDTX is substantially less than the NDCA. See Resp. at 26. Lyft
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 9 of 11 PageID #: 2527
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`concedes that the remaining convenience factors do not favor transfer to NDCA. Accordingly, the
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`balance of factors does not weigh in favor of transfer.
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`III. CONCLUSION
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`Defendant’s Motion to Dismiss for Improper Venue (Dkt. 30) should be denied in its
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`entirety. Alternatively, AGIS respectfully requests that the Court permit it to conduct venue
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`discovery prior to a determination on the Motion. In the event this Court finds venue improper,
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`and transfer is warranted, in the interests of justice, AGIS respectfully requests that the Court
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`transfer this case to the Western District of Texas.
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`Dated: June 22, 2021
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`Respectfully submitted,
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` /s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Ave., Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`Samuel F. Baxter
`State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
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`ATTORNEYS FOR PLAINTIFF AGIS
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 10 of 11 PageID #: 2528
`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 10 of 11 PageID #: 2528
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`SOFTWARE DEVELOPMENT LLC
`SOFTWARE DEVELOPMENT LLC
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`Case 2:21-cv-00072-JRG-RSP Document 90 Filed 06/22/21 Page 11 of 11 PageID #: 2529
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on June 22, 2021, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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