Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 1 of 16 PageID #: 2684
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`
`Defendants.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`
`§
`Case No. 2:21-cv-00072-JRG
`§
`(LEAD CASE)
`§
`
`JURY TRIAL DEMANDED
`§
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`§
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`§
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`WHATSAPP, INC.,
`
`
`Defendant.
`
`
`Case No. 2:21-cv-00029-JRG
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S SUR-REPLY
`IN FURTHER SUPPORT OF OPPOSITION TO
`DEFENDANT WHATSAPP, INC.’S MOTION TO DISMISS
`FIRST AMENDED COMPLAINT FOR IMPROPER VENUE (DKT. 63)
`
`
`
`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 2 of 16 PageID #: 2685
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`TABLE OF CONTENTS
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`Page(s)
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`I.
`
`II.
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`WHATSAPP’S MOTION MUST BE DENIED ................................................................ 1
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`IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED ................... 7
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`III.
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`CONCLUSION ................................................................................................................. 10
`
`
`
`i
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 3 of 16 PageID #: 2686
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Blitzsafe Texas, LLC v. Mitsubishi Electric Corp.,
`No. 2:17-cv-00430-JRG, 2019 WL 2210686 (E.D. Tex. May 22, 2019) ..................................7
`
`Duke University v. Sandoz Inc.,
`No. 2:17-cv-00528-JRG, 2018 WL 4258520 (E.D. Tex. Apr. 3, 2018) ....................................8
`
`In re Genentech, Inc.,
`556 F.3d 1338 (Fed. Cir. 2009)..................................................................................................8
`
`In re Google,
`949 F.3d 1338 (Fed. Cir. 2020)..............................................................................................4, 5
`
`Mallinckrodt IP v. B. Braun Med. Inc.,
`No. 17-365-LPS, 2017 WL 6383610 (D. Del. 2017) .................................................................7
`
`In re Nitro Fluids L.L.C.,
`978 F.3d 1308 (Fed. Cir. 2020)..................................................................................................9
`
`Personalized Media Commc’ns, LLC v. Google LLC,
`No. 2:19-cv-00090-JRG, Dkt. 156 at 1 (E.D. Tex. Feb. 13, 2020) ............................................5
`
`Quest NetTech Corp. v. Apple, Inc.,
`No. 2:19-cv-00118-JRG, 2019 WL 6344267 (E.D. .Tex. Nov. 27, 2019) ................................8
`
`In re SK hynix Inc.,
` 847 Fed. Appx. 847, 853-54 (Fed. Cir. 2021)...........................................................................9
`
`Uniloc 2017 LLC v. Riot Games, Inc.,
`No. 2:19-cv-00223-JRG, 2020 WL 1158611 (E.D. Tex. Mar. 10, 2020) ..................................7
`
`Vocalife LLC v. Amazon.com, Inc.,
`No. 2:19-cv-00123-JRG, 2019 WL 6345191 (E.D. Tex. Nov. 27, 2019) .................................8
`
`WhatsApp LLC v. AGIS Software Dev. LLC,
`No. 5:21-cv-03076, Dkt. 1 (N.D. Cal. Apr. 27, 2021) ...............................................................9
`
`Statutes
`
`28 U.S.C. § 1406 ..........................................................................................................................1, 2
`
`28 U.S.C. § 1694 ..............................................................................................................................4
`
`ii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 4 of 16 PageID #: 2687
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`Other Authorities
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`Fed. R. Civ. P. 12(b)(6)....................................................................................................................3
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`
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`iii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 5 of 16 PageID #: 2688
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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 further support of opposition to Defendant
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`WhatsApp, Inc.’s (“Defendant” or “WhatsApp”) Motion to Dismiss First Amended Complaint for
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`Improper Venue (Dkt. 63) (the “Motion”).1
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`AGIS has shown that venue is proper over WhatsApp in this District. WhatsApp’s Reply
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`(Dkt. 88) fails to show otherwise. WhatsApp’s Motion must be denied because the record shows
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`that WhatsApp maintains regular and established places of business in the District. It is undisputed
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`that (1) WhatsApp has physical property located in this District which includes the Like Way Data
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`Center and the physical devices within the Like Way Data Center, (2) WhatsApp employees and
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`personnel are physically present at this physical property located in this District, and (3) WhatsApp
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`pays taxes directly to Denton County in this District. There is no dispute that the Like Way Data
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`Center is “of WhatsApp.”
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`In the event the Court finds that venue is not proper, and transfer is warranted under 28
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`U.S.C. § 1406, AGIS respectfully requests that this Court transfer this action to the Northern
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`District of Texas (“NDTX”) or the Western District of Texas (“WDTX”) instead of the Northern
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`District of California (“NDCA”).
`
`I.
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`WHATSAPP’S MOTION MUST BE DENIED
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`WhatsApp maintains regular and established places of business in this District. Contrary
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`to WhatsApp’s allegations, publicly available information from both Texas state and local county
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`governments shows that sections of the Like Way Data Center are physically located in Denton
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`County. Dkt. 82 (“Resp.”) at 13-14. In support, AGIS submits the Real Property Asset Maps for
`
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`1 AGIS’s Response in Opposition to Defendant WhatsApp, Inc’s Motion to Dismiss for Improper
`Venue (Dkt. 82) inadvertently referred to Dkt. 34, WhatsApp’s Motion to Dismiss the Original
`Complaint. AGIS’s Response is in opposition to WhatsApp’s Motion to Dismiss the First
`Amended Complaint for Improper Venue (Dkt. 63).
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`
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 6 of 16 PageID #: 2689
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`
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`the Like Way Data Center and the ArcGIS Web Map from the Tarrant Appraisal District which
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`show that the Like Way Data Center extends into Denton County. See id.; Dkt. 82-10 – 83-13.
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`WhatsApp does not dispute that its Like Way Data Center is physically located in Denton County
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`in this District. WhatsApp merely argues that the Court should not consider the evidence. After
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`AGIS’s opposition, WhatsApp took issue with the Tarrant Appraisal District maps, arguing that
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`the maps may not be used for “legal purposes.” But WhatsApp conceded the relevance of these
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`same Tarrant County maps when it submitted and relied on maps from the same Tarrant County
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`government source with different filters removing the Denton County line. Resp at 11; Dkt. 63-
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`13. Moreover, the map data showing that the WhatsApp’s Like Way Data Center is physically
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`located in this District is further corroborated by another state government map from the Texas
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`Department of Transportation’s Real Property Asset Map. Dkt. 82-10; Dkt. 82-11.
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`With regard to property taxes paid by WhatsApp and its parent Facebook to Denton
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`County,2 it is undisputed that WhatsApp and its parent Facebook pay taxes directly to Denton
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`County for the Like Way Data Center and nearby Alliance Gateway (which also physically extends
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`into the District) according to the Denton County Tax Records submitted by AGIS. Resp. at 14.
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`WhatsApp does not dispute that it pays taxes to Denton County for the Like Way Data Center.
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`WhatsApp has not shown that the Denton County Tax Records are inauthentic or incorrect.
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`Despite the undisputed validity of the Denton County property tax records, WhatsApp argues that
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`the Court should not consider the property taxes paid to Denton County because of its own belief
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`regarding how Denton County distributes property taxes (based on the self-serving statements of
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`2 AGIS acknowledges that its Response in Opposition to WhatsApp’s Motion to Dismiss
`mistakenly stated that WhatsApp pays taxes in Denton County for the BPP at INAP Data Center
`where it intended to submit that WhatsApp pays taxes in Collin County for the BPP at INAP Data
`Center. See Reply at 8 n.1.
`
`2
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 7 of 16 PageID #: 2690
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`
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`a Facebook employee in California regarding the school districts in Texas). Reply at 3-4. But
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`WhatsApp’s belief––of how taxes paid directly to Denton County for the physical property located
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`in Denton County are distributed––is irrelevant to the issue presented to this Court. In fact, because
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`the question at hand is whether WhatsApp has a regular and established place of business within
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`the District, Denton County’s arrangements with neighboring Tarrant County for education are
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`relevant only to the extent activities in Tarrant County may be attributable to Denton County.
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`What is relevant to this Motion is that WhatsApp pays taxes directly to Denton County for the
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`Like Way Data Center physically located in Denton County. This evidence corroborates the fact
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`that the Like Way Data Center is a physical place of business in the District and that the Like Way
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`Data Center is “of WhatsApp.”
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`Moreover the existence of WhatsApp’s physical property at the INAP Data Center is
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`relevant to the analysis. Contrary to WhatsApp’s allegations, AGIS does not rely on any “business
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`personal property” to establish real property. Rather, AGIS has shown that the INAP Data Center
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`is a regular and established place of business of WhatsApp where (1) it is a physical place located
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`in this District; (2) it is a regular and established place of business within this District; and (3) a
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`place of business of WhatsApp. Resp. at 14-19. 3
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`First, WhatsApp does not submit that the servers are no longer located at the INAP Data
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`Center, that there is no longer content stored on the servers, that the servers are turned or shut
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`down, or that the servers have been decommissioned. Thus, the Facebook and WhatsApp servers
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`3 With regard to WhatsApp’s allegations that it has “specifically requested that AGIS identify any
`allegations of direct infringement by June 14,” WhatsApp has sent numerous letters outside of this
`Motion demanding discovery and responses, for example, regarding the basis for this action. As
`a preliminary matter, WhatsApp has not filed a motion to dismiss AGIS’s claims pursuant to Fed.
`R. Civ. P. 12(b)(6). Moreover, AGIS has submitted its infringement contentions in accordance
`with this Court’s Local and Patent Rules.
`
`3
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 8 of 16 PageID #: 2691
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`must still be functioning to carry out WhatsApp’s business on behalf of WhatsApp and at
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`WhatsApp’s direction, and thus satisfy § 1400(b). To the extent it is necessary, venue discovery
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`regarding the activities of these servers will reveal additional facts including WhatsApp’s
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`interaction with and relationship to the servers.
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`The INAP Data Center satisfies the second Cray factor, requiring a “regular and established
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`place of business.” Resp. at 14-19. As such, venue over WhatsApp is proper and WhatsApp’s
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`arguments are unavailing. First, WhatsApp argues for an implausible interpretation of In re
`
`Google, requiring that service must be made upon the WhatsApp servers located at the INAP Data
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`Center for the machine to qualify as an agent. Reply at 11. This argument fails. WhatsApp
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`attempts to create a heightened service standard for machines when no such personal service
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`requirement exists for humans. Nonetheless, the Federal Circuit reasoned that 28 U.S.C. § 1694
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`applies to both humans and machine agents with equal weight. See In re Google, 949 F.3d 1338,
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`1347 (Fed. Cir. 2020) (“To be clear, we do not hold today that a ‘regular and established place of
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`business’ will always require the regular presence of a human agent, that is, whether a machine
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`could be an ‘agent.’”). Moreover, the Texas registered agent statute makes no distinction between
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`business transacted by humans and machines, and accordingly, service may be made on a machine
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`via a registered agent pursuant to § 1694, just as it may be made upon a person.
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`Here, WhatsApp’s and its parent Facebook’s business models revolve around the storage
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`and exchange of information and data. Accordingly, servers which produce, store, and furnish the
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`information and data of WhatsApp and Facebook may act as agents where they carry out key
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`business activities. WhatsApp alleges that because servers may not “consent to act on behalf of
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`the principal,” they cannot act as agents. Reply at 11. However, WhatsApp’s conclusions are
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`inconsistent with the Federal Circuit’s recognition that a machine could be an agent. See In re
`
`4
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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 9 of 16 PageID #: 2692
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`
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`Google, 949 F.3d at 1347. Nonetheless, WhatsApp’s and its parent Facebook’s servers manifest
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`consent to produce, store, and furnish information and data on behalf of WhatsApp because they
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`are programmed to do so.
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`The Federal Circuit in In re Google did not foreclose the possibility that additional facts or
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`evidence could show that the employees of the ISPs satisfied the requirement for employees or
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`agents. Id. at 1347. In Personalized Media Commc’ns, LLC v. Google LLC, the Court ordered
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`supplemental briefing following venue discovery from which the Court could make a
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`determination regarding venue. No. 2:19-cv-00090-JRG, Dkt. 156 at 1 (E.D. Tex. Feb. 13, 2020).
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`Thus, under Google, AGIS has demonstrated that the Facebook servers in the INAP Data Center
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`can and do satisfy the agency requirement. Resp. at 16-18. WhatsApp and Facebook deploy the
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`servers to act in WhatsApp’s interest and on WhatsApp’s behalf to carry out WhatsApp’s business
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`to customers in this District. Id. WhatsApp retains control over the servers’ performance of
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`WhatsApp’s business. Id. Venue discovery is warranted and will reveal relevant facts regarding
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`the manner and means in which WhatsApp directs and controls the tasks performed by the servers
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`on behalf of WhatsApp and will confirm the business functions carried out by the servers and/or
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`WhatsApp’s employees or other human or machines agents located in the District.
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`WhatsApp incorrectly submits that it did not conduct business from the INAP Data Center
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`and “maintenance activities cannot, standing alone, be considered the conduct of [WhatsApp’s]
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`business.” Reply at 12. However, as shown above, WhatsApp’s business revolves around
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`products for its messaging services, including providing, storing, and furnishing information as
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`part of its business model. Resp. at 18. Accordingly, the INAP Data Center did not merely
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`“maintain” equipment.
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`WhatsApp alleges that because AGIS cites to an archived privacy policy, venue cannot be
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 10 of 16 PageID #: 2693
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`
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`established over WhatsApp in this District. Reply at 12. However, even WhatsApp’s updated
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`privacy policy reflects that WhatsApp collects and stores information from its customers and users.
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`See, e.g., Ex. 23 Privacy Policy (“Our Services have optional features which, if used by you,
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`require us to collect additional information to provide such features. . . . For example, you cannot
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`share your location with your contacts if you do not permit us to collect your location data from
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`your device.”); id. (“We collect information about your activity on our Services.”); id. (“We collect
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`device and connection-specific information when you install, access, or use our Services.”); id.
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`(“We collect and use precise location information from your device with your permission when
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`you choose to use location-related features, like when you decide to share your location with your
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`contacts or view locations nearby or locations others have shared with you. . . . Even if you do not
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`use our location-related features, we use IP addresses and other information like phone number
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`area codes to estimate your general location (e.g., city and country. We also use your location
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`information for diagnostics and troubleshooting purposes.”). Moreover, the updated privacy
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`policy shows that WhatsApp collects and stores information on its servers, including undelivered
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`messages and media. Id. (“If a message cannot be delivered immediately . . . we keep it in
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`encrypted form on our servers for up to 30 days as we try to deliver it.”); see id. (“When a user
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`forwards media within a message, we store that media temporarily in encrypted form on our servers
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`to aid in more efficient delivery of additional forwards.”). Lastly, WhatsApp’s Privacy Policy
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`reveals that it works with Third-Party Service Providers to “help us operate, provide, improve,
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`understand, customize, support, and market our Services.” Id. WhatsApp works with such
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`providers to “distribute our apps; provide our technical and physical infrastructure, delivery, and
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`other systems; provide engineering support, cybersecurity support, and operational support; . . .
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`[and] supply location, map, and places information.” Id. However, the Privacy Policy or publicly
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`6
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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 11 of 16 PageID #: 2694
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`
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`available information does not reveal what companies WhatsApp works with for its products nor
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`their locations. Id. Accordingly, venue discovery would uncover additional facts that bear on the
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`venue inquiry.
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`To the extent the Court finds that WhatsApp does not reside in this District, AGIS
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`respectfully requests that it be permitted to conduct venue discovery prior to a determination on
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`the Motion “to allow the adversarial process to aid the Court in making a fact-specific decision on
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`a well-developed factual record.” Mallinckrodt IP v. B. Braun Med. Inc., No. 17-365-LPS, 2017
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`WL 6383610, at *3 (D. Del. 2017). While WhatsApp contends that venue discovery is not
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`necessary, the Court has discretion to allow targeted venue discovery. See Uniloc 2017 LLC v.
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`Riot Games, Inc., No. 2:19-cv-00223-JRG, 2020 WL 1158611, at *3 (E.D. Tex. Mar. 10, 2020)
`
`(“[T]he Court is of the opinion that Uniloc should be permitted to take additional venue discovery.
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`It is therefore ORDERED that Uniloc has leave to conduct discovery in the following, narrowly
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`tailored manner to facilitate fair and full adjudication of the parties’ venue disputes.”) (emphasis
`
`added); see Blitzsafe Texas, LLC v. Mitsubishi Electric Corp., No. 2:17-cv-00430-JRG, 2019 WL
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`2210686, at *3 (E.D. Tex. May 22, 2019) (“[J]urisdictional discovery should only be denied where
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`it is impossible that the discovery ‘could . . . add[] any significant facts’ that might bear on the
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`jurisdictional determination.”) (emphasis added). Here, WhatsApp does not allege that it is
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`impossible that discovery would yield relevant facts that may bear on the venue determination.
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`Id,, at *3 (“Put another way, jurisdictional discovery should typically be granted unless ‘no amount
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`of information . . . would strengthen’ the movant’s jurisdictional claims.”). Accordingly, AGIS
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`should be permitted to conduct venue discovery.
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`II.
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`IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED
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`Because venue is proper, and alternatively, venue discovery is warranted, WhatsApp’s
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`Motion should be denied. However, in the event that the Court finds that transfer is warranted,
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`7
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 12 of 16 PageID #: 2695
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`AGIS respectfully requests that this action be transferred to the NDTX or the WDTX, where venue
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`over WhatsApp is undisputed. AGIS has demonstrated that, based on the § 1404 convenience
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`factors, the NDTX or the WDTX is clearly more convenient than the NDCA. Resp. at 20-23; see
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`Duke University v. Sandoz Inc., No. 2:17-cv-00528-JRG, 2018 WL 4258520, at *2 (E.D. Tex. Apr.
`
`3, 2018) (“The Court finds that in this case, transfer, rather than dismissal, is in the interest of
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`justice.”).
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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. Resp. at 20-22. Where “[t]he convenience of the witnesses is probably the
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`single most important factor in a transfer analysis,” (Quest NetTech Corp. v. Apple, Inc., No. 2:19-
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`cv-00118-JRG, 2019 WL 6344267, at *5 (E.D. .Tex. Nov. 27, 2019)) WhatsApp fails to
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`specifically identify a single witness from which the Court “should assess the relevance and
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`materiality of the information the witness may provide.” In re Genentech, Inc., 556 F.3d 1338,
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`1343 (Fed. Cir. 2009). In contrast, AGIS has specifically identified witnesses with relevant
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`knowledge. Similarly, AGIS has identified several non-party witnesses, including but not limited
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`to David Sietsema, who is located in this District, and Eric Armstrong, who lives and works in
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`Allen, Texas. See Resp. at 20-224. Accordingly, both of these factors do not weigh in favor of
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`transfer and WhatsApp has failed to show that the convenience of litigating in NDCA, which is
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`far from AGIS, AGIS, Inc., its witnesses, and its sources of proof, outweighs litigating in the
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`NDTX or the WDTX where WhatsApp itself maintains numerous regular and established places
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`of business. Compare Resp. at 20-22 with Reply at 11 see Vocalife LLC v. Amazon.com, Inc., No.
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`2:19-cv-00123-JRG, 2019 WL 6345191, at *6 (E.D. Tex. Nov. 27, 2019). and a balance of the
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`factors establishes that the NDTX and the WDTX are clearly more convenient for all parties.
`
`8
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`

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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 13 of 16 PageID #: 2696
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`
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`The NDTX and the WDTX have a substantial local interest in adjudicating this dispute
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`where AGIS is a Texas entity with its only office and data center located nearby in the EDTX, and
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`its sister entity, AGIS, Inc. maintains an office in WDTX. See Resp. at 20-22. As demonstrated,
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`the NDTX and the WDTX also have a substantial local interest where WhatsApp maintains
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`numerous regular and established places of business. Accordingly, the balance of factors does not
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`weigh in favor of transfer.
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`WhatsApp alleges that this action should be transferred to the NDCA under the “first-to-
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`file rule.” However, it is undisputed that AGIS’s action in this District is the first filed action,
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`where the complaint was filed on January 29, 2021. Compare Dkt. 1 with WhatsApp LLC v. AGIS
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`Software Dev. LLC, No. 5:21-cv-03076, Dkt. 1 (N.D. Cal. Apr. 27, 2021). With regard to
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`WhatsApp’s claims that because Judge Beth Labson Freeman previously presided over Life360,
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`Inc. v Advanced Ground Information Systems, Inc., Case No. 5:15-cv-00151-BLF (N.D Cal.), this
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`case should be transferred, that case involved different parties. Even under WhatsApp’s incorrect
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`assumption that it is the “first-to-file,” WhatsApp has “not shown a clear legal right to a transfer
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`under the first-to-file rule to a federal forum that could not be a transferee forum under the
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`threshold requirements of § 1404(a).” In re SK hynix Inc., 847 Fed. Appx. 847, 853-54 (Fed. Cir.
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`2021) (“But it is a different question whether there is a legal right under the first-to-file rule to
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`compel a transfer between federal forums when § 1404(a)’s threshold conditions are not met.”).4
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`Accordingly, transfer to the NDTX or the WDTX is warranted.
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`4 In relying on In re Nitro Fluids L.L.C., WhatsApp misstates the Federal Circuit’s holding. 978
`F.3d 1308, 1311 (Fed. Cir. 2020). The Federal Circuit stated that the district court erred where its
`determination “rested on the legal proposition that the first-to-file rule is only applicable when the
`balance of factors favors the first-filed court.” Id. Rather, the Federal Circuit stated “[u]nless the
`balance of transfer factors favors keeping the case in the second-filed court, there are no
`compelling circumstances to justify such an exception.” Id. As demonstrated above, this action
`is the first-filed action. Under the Federal Circuit’s holding, WhatsApp would need to demonstrate
`
`
`9
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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 14 of 16 PageID #: 2697
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`
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`III. CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court deny Defendant’s
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`Motion to Dismiss First Amended Complaint for Improper Venue (Dkt. 63) in its entirety.
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`Alternatively, AGIS respectfully requests that the Court permit it to conduct venue discovery prior
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`to a determination on the Motion. In the event the Court finds venue improper, and transfer is
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`warranted in the interest of justice, AGIS respectfully requests that the Court transfer this case to
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`the NDTX or the WDTX.
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`Dated: June 23, 2021
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`
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`
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`Respectfully submitted,
`
`
`
`
`
` /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
`
`
`
`that the balance of transfer factors favors keeping the NDCA action in that court in order to avoid
`transfer under the first-to-file rule.
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`10
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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 15 of 16 PageID #: 2698
`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 15 of 16 PageID #: 2698
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`ATTORNEYS FOR PLAINTIFF AGIS
`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
`SOFTWARE DEVELOPMENT LLC
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`11
`11
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`Case 2:21-cv-00072-JRG-RSP Document 95 Filed 06/23/21 Page 16 of 16 PageID #: 2699
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on June 23, 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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