Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 1 of 17 PageID #: 10292
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`CIVIL ACTION NO. 2:22-cv-263-JRG
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`JURY TRIAL DEMANDED
`
`Defendants.
`
`
`
`SAMSUNG’S MOTION TO STAY PENDING RESOLUTION OF SAMSUNG’S
`MOTION TO SEVER AND TRANSFER TO THE NORTHERN DISTRICT OF
`CALIFORNIA CLAIMS AGAINST GOOGLE FIND MY DEVICE
`
`
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 2 of 17 PageID #: 10293
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`TABLE OF CONTENTS
`
`
`
`
`Page
`
`I.
`
`FACTUAL BACKGROUND ............................................................................................ 2
`
`A.
`
`B.
`
`C.
`
`AGIS’s Original Allegations In This Case Against Non-Google Software .......... 2
`
`AGIS’s Motion For Leave To Accuse Google’s FMD In This Case .................... 2
`
`Samsung’s Motion To Sever And Transfer ........................................................... 3
`
`II.
`
`LEGAL STANDARD ........................................................................................................ 4
`
`III.
`
`ARGUMENT ..................................................................................................................... 5
`
`A.
`
`The Impending November 3 Markman Hearing Requires An Immediate
`Stay Until Samsung’s Motion To Sever And Transfer Is Resolved ...................... 5
`
`B.
`
`All Three Stay Factors Favor a Stay ...................................................................... 7
`
`1.
`
`2.
`
`3.
`
`Factor One: A Stay Will Not Prejudice AGIS ........................................... 7
`
`Factor Two: Samsung Will Suffer Hardship Absent A Stay ..................... 8
`
`Factor Three: A Stay Will Conserve Judicial Resources ........................... 9
`
`IV.
`
`CONCLUSION ................................................................................................................ 10
`
`i
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 3 of 17 PageID #: 10294
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`TABLE OF AUTHORITIES
`
`
`
`
`Page
`
`Cases
`
`In re Apple Inc.,
`52 F.4th 1360 (Fed. Cir. 2022) ..................................................................................................5
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020)..........................................................................................1, 4, 6
`
`In re Apple Inc.,
`No. 2023-120, 2023 WL 2359699 (Fed. Cir. Mar. 6, 2023) ......................................................5
`
`AR Design Innovations LLC v. Ashley Furniture Indus., Inc.,
`No. 4:20-CV-392-SDJ, 2021 WL 6496714 (E.D. Tex. Jan. 11, 2021)......................................8
`
`In re Google Inc.,
`No. 2015-138, 2015 WL 5294800 (Fed. Cir. July 16, 2015) .........................................1, 6, 8, 9
`
`In re Google LLC,
`No. 2022-140-42, 2022 WL 1613192 (Fed. Cir. May 23, 2022) ...........................................4, 9
`
`In re Horseshoe Entm’t,
`337 F.3d 429 (5th Cir. 2003) .....................................................................................................4
`
`Owens v. Experian Info. Sols. Inc.,
`No. 4:23-CV-79-SDJ-KPJ, 2023 WL 3818357 (E.D. Tex. June 5, 2023) .................................5
`
`Secure Axcess, LLC v. Nintendo of Am. Inc.,
`No. 2:13-CV-289-JRG, 2014 WL 12951781 (E.D. Tex. Feb. 10, 2014) ................................10
`
`In re SK Hynix Inc.,
`835 F. App’x 600 (Fed. Cir. 2021) ........................................................................................1, 5
`
`SSL Services, LLC v. Cisco Sys., Inc.,
`No. 2:15-CV-433-JRG-RSP, 2016 WL 3523871 (E.D. Tex. June 28, 2016) ............................8
`
`Stragent LLC v. BMW of N. Am., LLC,
`No. 6:16-CV-446, 2017 WL 3709083 (E.D. Tex. July 11, 2017) .............................................7
`
`In re TracFone Wireless, Inc.,
`848 F. App’x 899 (Fed. Cir. 2021) ........................................................................................1, 5
`
`U.S. v. Colomb,
`419 F.3d 292 (5th Cir. 2005) .....................................................................................................4
`
`ii
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 4 of 17 PageID #: 10295
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page
`
`
`Veraseal LLC v. CostCo Wholesale Corp.,
`No. 217CV00713RWSRSP, 2018 WL 4524122 (E.D. Tex. May 18, 2018) .............................8
`
`
`
`iii
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 5 of 17 PageID #: 10296
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`
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`Samsung respectfully moves for a stay of this case pending resolution of its Motion to
`
`Sever Claims and Transfer to the Northern District of California (“NDCA”) Claims Against
`
`Google Find My Device (Dkt. 117, “Motion to Sever and Transfer”), in view of the impending
`
`Markman hearing that is scheduled for November 3, 2023, less than two months away.
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`Despite filing this case in July 2022, AGIS waited nearly a year, with the close of fact
`
`discovery just weeks away, to move for leave to add allegations against Google’s Find My Device
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`(“FMD”) software. Dkt. 72. Two weeks ago, on August 24, the Court granted AGIS leave to
`
`accuse FMD—but recognizing the prejudice of adding such allegations late in discovery, the Court
`
`continued the Markman hearing to November 3 and the trial date to July 8, 2024. Dkt. 115. Just
`
`a week after the Court’s order granting leave to add allegations against FMD, Samsung promptly
`
`filed its Motion to Sever and Transfer those allegations to the NDCA.
`
`A stay is required here because the rescheduled Markman hearing date is just two months
`
`away and Samsung’s Motion to Sever and Transfer has not been decided. The Federal Circuit has
`
`repeatedly held that venue and transfer motions must be decided before any substantive
`
`proceedings, including specifically before the Markman hearing. See In re TracFone Wireless,
`
`Inc., 848 F. App’x 899, 900 (Fed. Cir. 2021); In re SK hynix Inc., 835 Fed. Appx. 600, 601 (Fed.
`
`Cir. 2021); In re Apple Inc., 979 F.3d 1332, 1338 (Fed. Cir. 2020); In re Google Inc., No. 2015-
`
`138, 2015 WL 5294800, at *2 (Fed. Cir. July 16, 2015). A stay is also required because
`
`immediately after the Markman hearing, this case will proceed through its most costly and time-
`
`consuming phases, with depositions, expert discovery, dispositive and Daubert motions, and
`
`pretrial disclosures all occurring during the ensuing six-month period. Absent a stay, Samsung
`
`and the Court will need to expend substantial resources on the most costly stages of the case—
`
`1
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 6 of 17 PageID #: 10297
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`
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`much of it likely needlessly, as the Motion to Sever and Transfer presents compelling bases for
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`transfer. Samsung thus requests a short stay until resolution of its Motion to Sever and Transfer.
`
`I.
`
`FACTUAL BACKGROUND
`
`A.
`
`AGIS’s Original Allegations In This Case Against Non-Google Software
`
`AGIS filed this case against Samsung nearly a year ago in July 2022, asserting the ’838
`
`and ’970 Patents along with two other patents against TAK, ATAK, and CivTAK software
`
`developed by the U.S. government. Dkt. 1 ¶ 16. In December 2022, AGIS filed an amended
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`complaint adding allegations against Samsung Knox software. Dkt. 29 ¶ 16. AGIS’s infringement
`
`contentions likewise accused TAK, ATAK, CivTAK, and Knox software. Ex. A, AGIS December
`
`2022 Infringement Contentions. AGIS did not include any allegations against any Google
`
`software, such as FMD, in its original complaint, amended complaint, or contentions.
`
`In November 2022, AGIS filed an ITC action against Google, Samsung, and eleven other
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`respondents alleging infringement of five patents, including the ’838 and ’970 Patents, and
`
`asserting the ’970 Patent against FMD. Ex. B, ITC Complaint ¶¶ 1-3. Samsung moved to stay
`
`this case pending the ITC action; in opposition, AGIS unambiguously represented to this Court
`
`and Samsung that this case does not concern “Google applications,” including FMD, as those
`
`“Google applications [were] accused before the NDCA and ITC.” Dkt. 41 at 2. This Court denied
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`Samsung’s motion to stay pending the ITC action, citing AGIS’s representations that “the same
`
`issues are not present since the ITC Investigation is focused on Google applications not accused
`
`in this action and involves an additional patent.” Dkt. 108 at 4; see also id. (“It is undisputed that
`
`the AGIS I and the ITC Investigation involve Google applications not accused in the instant case.”).
`
`B.
`
`AGIS’s Motion For Leave To Accuse Google’s FMD In This Case
`
`AGIS terminated its ITC action on June 15. The next day, AGIS filed its Second Amended
`
`Complaint, asserting for the first time in this case infringement allegations against FMD for the
`
`2
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 7 of 17 PageID #: 10298
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`
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`’838 and ’970 Patents. Dkt. 69 ¶¶ 25, 36. AGIS then filed a motion for leave to amend its
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`infringement contentions to add allegations against FMD (“Contentions Motion”), which Samsung
`
`opposed. Dkts. 72, 85. While AGIS’s Contentions Motion was pending, this case progressed
`
`through the substantial document production deadline, and the parties also completed claim
`
`construction briefing. Dkt. 87, 97, 103.
`
`On August 24, the Court granted AGIS’s Contentions Motion, continued the Markman
`
`hearing to November 3, 2023, and continued the trial date to July 8, 2024. Dkt. 115. The Court
`
`reasoned that the addition of FMD with only weeks left in fact discovery under the original case
`
`schedule was prejudicial, and with FMD added to the case, there was a need for supplemental
`
`claim construction proceedings and third-party discovery from Google, the company that develops
`
`FMD. Id.; Ex. C (Hrg. Tr.) at 25:23-26:21.
`
`On September 5, the parties submitted an amended docket control order in light of the
`
`continued dates, setting: the fact discovery cutoff on February 6, 2024; the expert discovery cutoff
`
`on March 22, 2024; the dispositive and Daubert motion deadline on April 2, 2024; the pretrial
`
`disclosures deadline on April 24, 2024; and the pretrial order deadline on May 29, 2024. Dkt. 121.
`
`C.
`
`Samsung’s Motion To Sever And Transfer
`
`Just one week after the Court granted AGIS’s Contentions Motion, on August 24, Samsung
`
`filed its Motion to Sever and Transfer the new FMD allegations to the NDCA, where briefing on
`
`the motion is set to complete by late September, just a month before the Markman hearing. Dkt.
`
`117. The motion argues that transfer of the FMD allegations is compelled by the Federal Circuit’s
`
`2022 decision directing transfer from this District to the NDCA of virtually identical cases that
`
`AGIS filed in 2019 against Samsung and Google, where AGIS asserted the same ’970 and ’838
`
`Patents, among others, against FMD in the Google case and also asserted another patent against
`
`FMD in the Samsung case. See id. at 1-3, 9-15; In re Google LLC, No. 2022-140-42, 2022 WL
`
`3
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 8 of 17 PageID #: 10299
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`
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`1613192, at *1 (Fed. Cir. May 23, 2022) (“Google I”); AGIS Software Dev. LLC v. Samsung Elecs.
`
`Co., Google LLC, No. 5:22-cv-04825-BLF, -04826-BLF (N.D. Cal.) (“AGIS I”). The Federal
`
`Circuit found the majority of Google’s witnesses and evidence for FMD were located in the
`
`NDCA, while AGIS had identified no relevant witnesses or evidence in this District, and thus, the
`
`NDCA was “clearly the more convenient forum in the Google and Samsung cases.” In re Google
`
`LLC, 2022 WL 1613192, at *2-5.
`
`The relevant transfer factors have not changed materially since then. Dkt. 117 at 9-15. In
`
`fact, those factors now more strongly favor transfer than in AGIS I. Because of the Federal
`
`Circuit’s order directing transfer, a court in the NDCA has been presiding over AGIS’s overlapping
`
`allegations against FMD for over a year and is set to hear oral argument on September 7, on
`
`Google’s summary judgment motion. Id. at 13-14. Thus, judicial economy and practical problems
`
`factors now strongly favor transfer to the NDCA, in addition to the sources of proof, compulsory
`
`process, and local interest factors that the Federal Circuit relied on in directing transfer of the AGIS
`
`I cases. Id. at 1-3, 9-15.
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`II.
`
`LEGAL STANDARD
`
`“[T]he power to stay proceedings” is part of a court’s “inherent power to control the
`
`disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
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`for litigants.” U.S. v. Colomb, 419 F.3d 292, 299 (5th Cir. 2005).
`
`“Although district courts have discretion as to how to handle their dockets, once a party
`
`files a transfer motion, disposing of that motion should unquestionably take top priority.” In re
`
`Apple Inc., 979 F.3d at 1337; see also In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003).
`
`Therefore, district courts should stay cases “to timely decide the transfer motion before proceeding
`
`to further substantive matters[.]” E.g., In re Apple Inc., No. 2023-120, 2023 WL 2359699, at *2
`
`(Fed. Cir. Mar. 6, 2023).
`
`4
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 9 of 17 PageID #: 10300
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`
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`This District considers three factors to determine whether a stay is warranted: “(1) potential
`
`prejudice to Plaintiff from a stay; (2) the hardship to Defendants if the stay is denied; and (3) the
`
`judicial efficiency in avoiding duplicative litigation if the stay is granted.” Owens v. Experian
`
`Info. Sols. Inc., No. 4:23-CV-79-SDJ-KPJ, 2023 WL 3818357, at *5 (E.D. Tex. June 5, 2023).
`
`III. ARGUMENT
`
`A.
`
`The Impending November 3 Markman Hearing Requires An Immediate Stay
`Until Samsung’s Motion To Sever And Transfer Is Resolved
`
`An immediate stay of this case is warranted in view of the advanced stage of this litigation,
`
`including the upcoming Markman hearing just two months away on November 3. The Federal
`
`Circuit has held that “it is a clear abuse of discretion [for a district court] to require the parties to
`
`expend additional party and court resources litigating the substantive matters of the case while [a]
`
`motion to transfer unnecessarily lingers on the docket.” In re Apple Inc., 52 F.4th 1360, 1362
`
`(Fed. Cir. 2022). The Federal Circuit has specifically and repeatedly held that district courts must
`
`resolve pending venue-related motions before the Markman hearing:
`
`•
`
`In re TracFone Wireless, Inc., 848 F. App’x 899, 900 (Fed. Cir. 2021): holding that a
`
`district court abused its discretion when it declined to rule on a motion to transfer and
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`moved forward with a Markman hearing, citing the “principle well-established in Fifth
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`Circuit law: That district courts must give promptly filed transfer motions ‘top priority’
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`before resolving the substantive issues in the case.”
`
`•
`
`In re SK Hynix Inc., 835 F. App’x 600, 601 (Fed. Cir. 2021): holding that in view of an
`
`“upcoming Markman hearing, we find it appropriate to grant the petition to the extent that
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`the district court must stay all proceedings concerning the substantive issues of the case
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`and all discovery until such time that it has issued a ruling on the motion [to transfer]
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`capable of providing meaningful appellate review of the reasons for its decision.”
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`5
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 10 of 17 PageID #:
`10301
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`
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`•
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`In re Apple Inc., 979 F.3d 1332, 1338 (Fed. Cir. 2020): directing transfer of the case, while
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`criticizing the district court because it “held a Markman hearing, issued its claim
`
`construction order, held a discovery hearing, and issued a corresponding discovery order,”
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`before deciding the transfer motion, because “[t]hese are not merely rote, ministerial tasks.
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`Indeed, a Markman hearing and claim construction order are two of the most important and
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`time-intensive substantive tasks a district court undertakes in a patent case.”
`
`•
`
`In re Google Inc., No. 2015-138, 2015 WL 5294800, at *2 (Fed. Cir. July 16, 2015):
`
`ordering the district court to “issue a decision on Google’s transfer motion within 30 days
`
`of the date of this order and stay all other proceedings pending final resolution of the
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`transfer motion,” because before ruling on defendant’s transfer motion, the “magistrate
`
`judge . . . pressed forward with the case, proceeding through to the close of discovery and
`
`conducting both a Markman hearing and a hearing related to several discovery disputes.”
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`In view of these precedents and the impending Markman hearing, this action should be
`
`stayed while Samsung’s Motion to Sever and Transfer remains unresolved.
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`Moreover, the schedule after the November 3 Markman hearing is packed. The parties will
`
`proceed through the most critical, time- and cost-consuming phases of the case: depositions will
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`follow and continue until fact discovery closes on February 6, 2024; opening expert reports are
`
`due February 13, 2024; expert discovery closes on March 22, 2024; dispositive and Daubert
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`motions are due April 2, 2024; pretrial disclosures are due April 24, 2024; motions in limine are
`
`due May 15, 2024; and the pretrial order is due May 29, 2024. Dkt. 121. Entering a stay before
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`the Markman hearing could, thus, not only avoid the need for the Court to construe certain terms
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`specific to FMD; it could also significantly streamline the most expensive stages of the case.
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`6
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`

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`10302
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`AGIS may point out that Samsung only filed its Motion to Sever and Transfer a week ago
`
`and just over two months before the Markman hearing. But that timing is only because AGIS
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`waited a year into this case to move to add FMD through its Contentions Motion. Dkt. 72. Until
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`this Court granted AGIS’s Contentions Motion just two weeks ago, on August 24, FMD was not
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`part of this case. But within a week of the Court granting leave for AGIS to accuse FMD in this
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`case, Samsung acted expeditiously in moving to sever and transfer those accusations.
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`Thus, a stay that includes postponing the Markman hearing should be entered while the
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`Court resolves Samsung’s Motion to Sever and Transfer.
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`B.
`
`All Three Stay Factors Favor a Stay
`
`The many Federal Circuit precedents requiring that venue issues be decided before a
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`Markman hearing alone compel a stay pending resolution of Samsung’s Motion to Sever and
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`Transfer, without consideration of the three stay factors. When they are considered, those factors
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`also favor granting a stay as detailed below.
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`1.
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`Factor One: A Stay Will Not Prejudice AGIS
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`The first factor—prejudice to AGIS—favors a stay because AGIS will not suffer any
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`prejudice from a short delay while the Motion to Sever and Transfer is resolved. Indeed, a short
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`delay alone is insufficient to show prejudice because that consideration of a short delay is “present
`
`in every patent case where a patentee is opposing a stay.” Stragent LLC v. BMW of N. Am., LLC,
`
`No. 6:16-CV-446, 2017 WL 3709083, at *2 (E.D. Tex. July 11, 2017).
`
`Additionally, there is no urgency to resolve this case quickly because AGIS is a non-
`
`practicing entity that does not engage in any product competition with Samsung. Thus, AGIS
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`seeks only monetary damages in this case, not injunctive relief. Dkt. 69 at 226-27. A delay of an
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`award of damages “alone is not undue prejudice.” Veraseal LLC v. CostCo Wholesale Corp., No.
`
`217CV00713RWSRSP, 2018 WL 4524122, at *1 (E.D. Tex. May 18, 2018); SSL Services, LLC
`
`7
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 12 of 17 PageID #:
`10303
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`
`
`v. Cisco Sys., Inc., No. 2:15-CV-433-JRG-RSP, 2016 WL 3523871, at *2 (E.D. Tex. June 28,
`
`2016) (finding the undue prejudice factor to be neutral because “[w]here a plaintiff seeks only
`
`money damages, a stay will not diminish the monetary damages to which [plaintiff] will be entitled
`
`if it succeeds.”); AR Design Innovations LLC v. Ashley Furniture Indus., Inc., No. 4:20-CV-392-
`
`SDJ, 2021 WL 6496714, at *2 (E.D. Tex. Jan. 11, 2021) (“When a patentee seeks exclusively
`
`monetary damages, mere delay in collecting those damages does not constitute undue prejudice.”).
`
`Further, AGIS cannot reasonably claim prejudice from a stay when, rather than accusing
`
`FMD at the outset of this case, it strategically delayed a year to add allegations against FMD. As
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`detailed in Samsung’s opposition to AGIS’s Contentions Motion, AGIS has known about and been
`
`actively litigating its allegations against FMD since 2017 across dozens of cases, including against
`
`Samsung in other matters. See Dkt. 85 at 2-6. Thus, AGIS’s conduct belies any claim that it would
`
`be prejudiced by a short stay.
`
`Given AGIS’s lack of competition with Samsung and deliberate delay in asserting claims
`
`against FMD, this factor weighs in favor of granting a stay.
`
`2.
`
`Factor Two: Samsung Will Suffer Hardship Absent A Stay
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`If the Court does not grant a stay, Samsung will be required to litigate claims against FMD
`
`in what it regards as the wrong and clearly less convenient forum for those claims. The Federal
`
`Circuit has held that requiring a defendant to engage in a case before a decision on transfer is
`
`prejudicial because the defendant would be unnecessarily “forced to expend resources litigating
`
`substantive matters in an inconvenient venue while a motion to transfer” is pending. In re Google,
`
`2015 WL 5294800, at *1.
`
`That principle applies here. As detailed above, the costliest phases of the case are
`
`upcoming, with the Markman hearing on November 3, and then continuing in the months that
`
`follow with depositions, the close of fact discovery, expert discovery, and pretrial motions and
`
`8
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 13 of 17 PageID #:
`10304
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`
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`disclosures. Samsung should not be required to proceed through these costly phases when the
`
`FMD allegations should be transferred to the NDCA.
`
`This scenario is not hypothetical or speculative. Indeed, this precise scenario played out
`
`in the AGIS I cases where Samsung filed a motion to transfer that remained pending while Samsung
`
`was forced to litigate through claim construction, fact discovery, expert discovery, dispositive
`
`motions, and pretrial disclosures. AGIS Software Dev. LLC v. Google LLC, No. 2:19-cv-00361-
`
`JRG (E.D. Tex.), Dkt. 46. Proceedings continued right up until two weeks before trial when, in
`
`May 2022, the Federal Circuit issued its Google I decision, finding that the NDCA was the clearly
`
`more convenient for the case and ordering transfer there. And since transfer, the NDCA court has
`
`ordered the transferred parties to redo certain work, such as infringement, invalidity, and damages
`
`contentions according to the NDCA local rules and re-briefing certain motions. E.g., AGIS
`
`Software Dev. LLC v. Google LLC, No. 5:22-cv-04826-BLF (N.D. Cal.), Dkts. 425, 436.
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`The same outcome should not be repeated here. Samsung should not be required to
`
`unnecessarily waste “time, energy, and money” on this matter while its Motion to Sever and
`
`Transfer is pending. In re Google, 2015 WL 5294800, at *1. Accordingly, this factor weighs
`
`strongly in favor of granting a stay.
`
`3.
`
`Factor Three: A Stay Will Conserve Judicial Resources
`
`For reasons similar to those discussed under factor two above, a stay will conserve judicial
`
`resources, while potentially eliminating the need for this Court to do anything further on this case
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`regarding FMD if it grants severance and transfer to the NDCA. This District has found that “a
`
`short stay pending resolution of the severance and transfer issues is likely to simplify the issues.”
`
`Secure Axcess, LLC v. Nintendo of Am. Inc., No. 2:13-CV-289-JRG, 2014 WL 12951781, at *1
`
`(E.D. Tex. Feb. 10, 2014). That is certainly the case here because Samsung’s requested stay will
`
`ensure that the issue of which forum (the NDCA or this District) is more convenient for resolving
`
`9
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`

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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 14 of 17 PageID #:
`10305
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`AGIS’s claims against FMD will be resolved before any substantive proceedings as to those claims
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`are addressed. Moreover, the need for a stay to conserve judicial resources is particularly high
`
`here given that the Markman hearing is just two months away and will be immediately followed
`
`by the busiest stages of the case. It would be inefficient and unnecessary for this Court to handle
`
`matters related to the FMD allegations through and past the Markman hearing, if it is ultimately
`
`determined that those allegations should have instead been litigated in the NDCA. Thus, the third
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`factor weighs in favor of granting a stay.
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`IV. CONCLUSION
`
`For the foregoing reasons, a short stay should be entered until this Court rules on
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`Samsung’s Motion to Sever and Transfer.
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`
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`10
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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 15 of 17 PageID #:
`10306
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`Dated: September 7, 2023
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`
`
`Respectfully submitted,
`
`By: /s/ Melissa R. Smith
`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Phone: (903) 934-8450
`Fax: (903) 934-9257
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`Gregory Blake Thompson
`Texas State Bar No. 24042033
`MANN | TINDEL | THOMPSON
`112 E. Line Street, Suite 304
`Tyler, Texas 75702
`(903) 657-8540
`(903) 657-6003 (fax)
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`Darin W. Snyder (pro hac vice)
`dsnyder@omm.com
`Mark Liang (pro hac vice)
`mliang@omm.com
`Bill Trac
`btrac@omm.com
`Sorin Zaharia
`szaharia@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8700
`Facsimile: (415) 984-8701
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`Stacy Yae (pro hac vice)
`syae@omm.com
`O’MELVENY & MYERS LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
`Telephone: (213) 430-6000
`Facsimile: (213) 430-6407
`
`Grant Gibson
`Texas State Bar No. 24117859
`ggibson@omm.com
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`11
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`O’MELVENY & MYERS LLP
`2501 North Harwood Street, Suite 1700
`Dallas, TX 75201-1663
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
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`Neil P. Sirota
`neil.sirota@bakerbotts.com
`Margaret M. Welsh
`margaret.welsh@bakerbotts.com
`BAKER BOTTS L.L.P.
`30 Rockefeller Plaza
`New York, NY 10112-4498
`Phone: (212) 408-2500
`Fax: (212) 408-2501
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`ATTORNEYS FOR DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA, INC.
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`Case 2:22-cv-00263-JRG-RSP Document 124 Filed 09/07/23 Page 17 of 17 PageID #:
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served with a copy of this document via electronic mail.
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`Dated: September 7, 2023
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`On August 29, 2023, pursuant to Local Rule CV-7(h), counsel Mark Liang for
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`Defendants met and conferred by e-mail with counsel Enrique Iturralde and Alfred Fabricant for
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`Plaintiff, and counsel for Plaintiff indicated on September 1, 2023 that Plaintiff is opposed to the
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`relief sought by this Motion.
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`Dated: September 7, 2023
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`/s/ Melissa R. Smith
`Melissa R. Smith
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