Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 1 of 11 PageID #: 1477
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`EIREOG INNOVATIONS LTD.,
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`Plaintiff,
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`v.
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`LENOVO GROUP LIMITED,
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`Defendant.
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`EIREOG INNOVATIONS LTD.,
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`Plaintiff,
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`v.
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`Case No. 2:24-cv-00239-JRG-RSP
`(Lead Case)
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`JURY TRIAL DEMANDED
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`Case No. 2:24-cv-00279-JRG-RSP
`(Member Case)
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`JURY TRIAL DEMANDED
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`HEWLETT PACKARD ENTERPRISE
`COMPANY,
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`Defendant.
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`PLAINTIFF’S SURREPLY IN OPPOSITION TO
`DEFENDANT’S MOTION TO DISMISS
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 2 of 11 PageID #: 1478
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`TABLE OF CONTENTS
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`INTRODUCTION ................................................................................................................. 1
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`I.
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`II. ARGUMENT ......................................................................................................................... 1
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`A. The Court Has Specific Personal Jurisdiction Over LGL Under A
`Stream Of Commerce Theory .................................................................................... 1
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`B. Exercising Personal Jurisdiction Over LGL Is Reasonable And Fair ........................ 5
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`C. Personal Jurisdiction Also Exists Under Agency/Alter Ego ...................................... 5
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`D. Personal Jurisdiction Under Rule 4 (k)(2) Is Proper .................................................. 6
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`III. CONCLUSION ...................................................................................................................... 7
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`i
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 3 of 11 PageID #: 1479
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`TABLE OF AUTHORITIES
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`Cases
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`ACQIS LLC v. Lenovo Grp. Ltd.,
`572 F. Supp. 3d 291 (W.D. Tex. 2021) .............................................................................. 1, 5, 6
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`AX Wireless LLC v. Lenovo Grp. Ltd.,
`No. 2:22-CV-00280-RWS-RSP, 2023 WL 7105701 (E.D. Tex. Sept. 6, 2023) .... 1, 2, 4, 5, 6, 7
`
`Daimler AG v. Bauman,
`571 U.S. 117 (2014) .................................................................................................................... 6
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`Orange Elec. Co. v. Autel Intelligent Tech. Corp.,
`No. 2:21-CV-00240-JRG, 2022 WL 4368160 (E.D. Tex. Sept. 21, 2022) ................................ 7
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`Touchcom, Inc. v. Bereskin & Parr,
`574 F.3d 1403 (Fed. Cir. 2009) .................................................................................................. 6
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`Rules
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`Fed. R. Civ. P. 4 .......................................................................................................................... 6, 7
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`ii
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 4 of 11 PageID #: 1480
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`I.
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`INTRODUCTION
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`On at least two other occasions, Defendant Lenovo Group Limited (“LGL”) has been found
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`to be subject to personal jurisdiction in Texas. See, e.g., AX Wireless LLC v. Lenovo Grp. Ltd.,
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`No. 2:22-CV-00280-RWS-RSP, 2023 WL 7105701, at *5 (E.D. Tex. Sept. 6, 2023); ACQIS LLC
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`v. Lenovo Grp. Ltd., 572 F. Supp. 3d 291, 305-07 (W.D. Tex. 2021). LGL has not provided an
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`adequate reason for this Court to depart from the holdings in either of those cases. As set forth in
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`Plaintiff Eireog Innovations Ltd.’s (“Eireog”) Amended Complaint, LGL is subject to personal
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`jurisdiction at least under a stream of commerce theory because LGL alone and through its U.S.-
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`based subsidiaries places the Accused Products into the stream of commerce with the expectation
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`that they will be purchased in the U.S. generally, and in the largest state, Texas. The factual
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`allegations in Eireog’s Amended Complaint are supported by numerous sources, including LGL’s
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`Annual Report (cited in Eireog’s Amended Complaint), LGL’s website, and LGL’s ESG Report.
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`Having already been found to have sufficient contacts with Texas, LGL cannot now
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`distance itself from those contacts using attorney argument and a vague employee declaration.
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`Moreover, LGL’s reliance on cases from courts in Illinois and Delaware should be rejected because
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`those cases do not bear on LGL’s contacts with the State of Texas. At bottom, this Court should
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`deny LGL’s Motion to Dismiss and find that LGL is subject to personal jurisdiction in Texas.
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`II.
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`ARGUMENT
`A.
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`The Court Has Specific Personal Jurisdiction Over LGL Under A Stream Of
`Commerce Theory
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`Eireog’s Amended Complaint more than adequately sets forth facts demonstrating that
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`LGL is subject to personal jurisdiction in Texas under a stream of commerce theory. Dkt. No. 12
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`(“Am. Compl.”) at ¶¶ 3-9, 11; see also Dkt. No. 40 at § V.A.1.i. For example, “[b]eyond a general
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`U.S. presence, the [Amended Complaint] specifically identifies locations for Best Buy, Costco,
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`1
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 5 of 11 PageID #: 1481
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`Office Depot, Target, and Wal-Mart within this District as authorized sellers of the Accused
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`Products that LGL, through the Lenovo Group, places into the stream of commerce.” AX Wireless,
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`2023 WL 7105701, at *4. “Viewing the allegations as true and the factual conflicts in [Eireog]’s
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`favor, [Eireog] has established a prima facie case that (1) LGL purposefully ships Accused
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`Products into the forum state through an established distribution channel and (2) the cause of action
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`for patent infringement is alleged to arise out of those activities.” Id.
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`LGL cannot meaningfully refute Eireog’s well-pleaded allegations. Instead, LGL resorts
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`to attorney argument and an employee declaration that was already considered by Judge Payne in
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`AX Wireless. For example, LGL asserts that its 2022/23 Annual Report is “not tied specifically to
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`LGL and instead describe LGL’s subsidiaries.” Dkt. No. 47 (“Reply”) at 2. But LGL overlooks
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`the fact that the Annual Report itself is titled “Lenovo Group Limited 2022/23 Annual Report,”
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`indicating that the statements therein are, in fact, “tied specifically to LGL.” Dkt. No. 40-05
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`(“Annual Report”) at 1. In fact, LGL’s argument that certain statements in its 2022/23 Annual
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`Report refer to a “global family of companies known as Lenovo” actually supports Eireog’s
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`position because it reinforces the fact that there is no distinction between the acts of LGL and those
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`of its subsidiaries. Reply at 2; Dkt. No. 40-05 at 61 (defining “Lenovo” as “LGL ‘together with
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`its subsidiaries’”). The Annual Report presents LGL as the head of a single entity operating to
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`manufacture, sell, and distribute the accused products worldwide, including in the United States
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`and Texas. Dkt. No. 40 at 14-15.
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`LGL’s Annual Report also shows that LGL has targeted the U.S. and Texas for purposes
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`of selling and distributing the Accused Products. For example, LGL’s Annual Report identifies
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`U.S.-based subsidiaries (such as Lenovo (United States) Inc. (“Lenovo US”) and Lenovo Global
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`Technology (United States) Inc. (“Lenovo Tech.”)) as “principal subsidiaries” and reports that
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`2
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 6 of 11 PageID #: 1482
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`such principal subsidiaries “are significant to the results of the year or form a substantial portion
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`of the net assets of the Group.” Dkt. No. 40-05 at 276, 279, 281. Those U.S. subsidiaries provide
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`for the “distribution of IT products” in the U.S., LGL maintains that it owns 100% of those entities,
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`and LGL includes their revenues in its consolidated financials, including revenues for the
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`“Americas.” Id. Both of those U.S. subsidiaries are also registered to do business in Texas—a
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`fact that LGL does not address. Am. Compl. ¶¶ 6-7. LGL does not dispute any of those facts.
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`LGL’s U.S. presence is further confirmed by LGL’s Environmental, Social and
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`Governance (“ESG”) Report, which also describes LGL as a global powerhouse employing people
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`from all over the world, identifies the United States as one of LGL’s headquarters, and touts LGL’s
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`global supply chain which “has established company locations, research centers, and
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`manufacturing sites around the world.” Dkt. No. 40 at 9 (citing Dkt. No. 40-06 (ESG Report) at
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`11, 104, 105. LGL also fails to meaningfully address its presence in Texas through its third-party
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`retailers.
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`In addition, LGL holds itself out as the entity that contributes to pension, retirement, and
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`deferred compensation plans for Lenovo’s U.S.-based employees. Dkt. No. 40-05 at 61 (defining
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`“Lenovo Group Limited (the ‘Company’, together with its subsidiaries, ‘Lenovo’ or the ‘Group’”);
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`id. at 162-65 (noting “[t]he Company” provides retirement benefits to U.S.-based employees).
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`LGL does not dispute this fact in its Reply and instead states that it “has nothing to do with whether
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`LGL places the accused products into the stream of commerce.” Reply at 3. Confusingly,
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`however, LGL maintains that it does not have any U.S.-based employees. Id. (quoting Dkt. No.
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`24 at 1 “LGL has neither physical locations nor employees in Texas or elsewhere in the United
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`States”). But if LGL truly has no U.S.-based employees, then the fact that LGL is paying pension,
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`retirement, and deferred compensation plans for the employees of its U.S. subsidiaries only further
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`3
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 7 of 11 PageID #: 1483
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`highlights the fact that LGL and its subsidiaries are inextricably intertwined. Further, LGL
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`provides no support for its assertion that the U.S.-based management level employees identified
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`by Eireog (Matthew Zielinski, Kirk Skaugen, and Laura Quatela) are purportedly not employees
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`of LGL. Reply at 3. Importantly, LGL’s Annual Report tells a different story, identifying Mr.
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`Skaugen, for example, as “the Executive Vice President of the Company” and Mr. Zielinski as “an
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`Executive Vice President of the Company and President of the International Sales Organization
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`(ISO) of the Company,” where “the Company” is defined as LGL. Dkt. No. 40-05 at 61, 156. As
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`Judge Payne recognized in AX Wireless, this evidence, at a minimum, creates a factual dispute as
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`to whether LGL shares executives and management teams with its subsidiaries in the U.S. See AX
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`Wireless, 2023 WL 7105701, at *4.
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`LGL’s attempt to dissociate LGL from the statements on Lenovo.com should be rejected.
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`Reply at 3. For example, LGL argues that the Lenovo.com website is not the website of LGL. Id.
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`Yet, the “Lenovo Group Limited 2022/23 Annual Report” identifies its “Website” as
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`“www.lenovo.com.” Dkt. No. 40-05 at 288. Similarly, the website’s “Privacy Statement” is
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`directly attributable to LGL—the “Privacy Statement” “applies to data collected through websites
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`owned and operated by Lenovo Group Ltd. and its affiliated group companies (‘Lenovo’) ….”
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`Dkt. No. 40-10 (https://www.lenovo.com/us/en/privacy/). To the extent the website does not
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`distinguish between LGL and its subsidiaries, and instead only discusses “Lenovo” as a single
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`entity that has its “Main Headquarters” in both China and in the United States, that again only
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`further exemplifies the interrelated nature of LGL and its subsidiaries operating as “Lenovo” or
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`the “Lenovo Group.” See Dkt. No. 40-4.
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`Based on similar evidence presented in the AX Wireless case, Judge Payne concluded:
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`its subsidiaries, affiliates, or
`The Lenovo Group—including LGL and
`intermediaries—is the established distribution channel for the Accused Products
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`4
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 8 of 11 PageID #: 1484
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`throughout the United States, including Texas, which is one of the most populated
`states. Accordingly, LGL could foresee that the Accused Products would be sold
`in Texas.
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`AX Wireless, 2023 WL 7105701, at *4. That same conclusion applies here. LGL cannot include
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`U.S.-based revenues from its wholly-owned U.S.-based subsidiaries and retailers in its financial
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`statements only to turnaround and argue that it “has no involvement” in the activities of those U.S.-
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`based entities that generate those very revenues. Reply at 3. Nor can LGL reconcile its
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`contributions to the pension plans of U.S.-based employees nor that its website is directly
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`attributable to LGL.
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`B.
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`Exercising Personal Jurisdiction Over LGL Is Reasonable And Fair
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`As the courts found in AX Wireless and ACQIS, the exercise of personal jurisdiction over
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`LGL in Texas is reasonable and fair. See Dkt. No. 40 at 12-13. LGL reiterates its already-rejected
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`argument that it faces a “significant inconvenience and burden in having to travel thousands of
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`miles from its home in Hong Kong to litigate in a foreign jurisdiction.” Reply at 9. But this
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`argument was already considered and rejected in AX Wireless and ACQIS, and should be rejected
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`here as well. See AX Wireless, 2023 WL 7105701, at *5; ACQIS, 572 F. Supp. 3d at 304-05.
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`LGL’s argument that Texas does not have an interest in resolving this dispute also fails.
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`Reply at 9. “[B]oth Texas and the United States have an interest in enforcing federal patent laws
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`and providing a forum for [Eireog] to efficiently pursue and resolve its patent infringement
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`claims”, as well as “an interest in discouraging patent infringement.” AX Wireless, 2023 WL
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`7105701, at *5. LGL cannot carry its burden to demonstrate that exercising personal jurisdiction
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`is not reasonable and fair.
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`C.
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` Personal Jurisdiction Also Exists Under Agency/Alter Ego
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`Eireog “has set forth a prima facie case of specific jurisdiction under its stream of
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`commerce theory,” and, therefore, “the Court need not individually address the remaining []
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`5
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 9 of 11 PageID #: 1485
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`theories.” AX Wireless, 2023 WL 7105701, at *3. In any event, personal jurisdiction over LGL
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`is also proper under an agency theory and/or alter ego theory. See Dkt. No. 40 at 17. As the Court
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`explained in ACQIS, “LGL’s control over… Lenovo US to establish, direct, and act as distribution
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`agents in the United States creates sufficient minimum contacts.” 572 F. Supp. 3d at 307. LGL
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`has therefore “purposefully avail[ed] itself of [this] forum by directing its agents or distributors to
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`take action [here].” Daimler AG v. Bauman, 571 U.S. 117, 135 n.13 (2014). Eireog’s Amended
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`Complaint has alleged, and the evidence supports, the conclusion that personal jurisdiction is also
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`proper under an agency and/or alter ego theory of personal jurisdiction. See Am. Compl. ¶¶ 6-9.
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`D.
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`Personal Jurisdiction Under Rule 4 (k)(2) Is Proper
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`Personal jurisdiction over LGL is also independently proper under Federal Rule of Civil
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`Procedure 4 (k)(2). LGL does not identify anywhere in the U.S. where it is subject to personal
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`jurisdiction and, instead, purports that it “conducts no activity anywhere in the United States.”
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`Reply at 7 (emphasis in original). But “if ‘the defendant contends that he cannot be sued in the
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`forum state and refuses to identify any other where suit is possible, then the federal court is entitled
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`to use Rule 4(k)(2).’” Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403, 1415 (Fed. Cir. 2009)
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`(citation omitted). LGL fails to substantively address the law and argues only that it is not subject
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`to personal jurisdiction under Rule 4(k)(2) because it has not put anything into the stream of
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`commerce. Reply at 10. Not surprisingly, however, LGL cites no authority for its position.
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`LGL suggests that the Court cannot exercise personal jurisdiction under Rule 4(k)(2)
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`because Eireog did not expressly cite Rule 4(k)(2) in the Amended Complaint. Reply at 9. But
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`LGL fails to identify any authority that requires an express citation to Rule 4(k)(2) in a complaint
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`in order for the Court to exercise personal jurisdiction pursuant to Rule 4(k)(2). That is because
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`there is no such requirement. To the contrary, this Court has already rejected this argument. See
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`Orange Elec. Co. v. Autel Intelligent Tech. Corp., No. 2:21-CV-00240-JRG, 2022 WL 4368160,
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`6
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 10 of 11 PageID #: 1486
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`at *3 (E.D. Tex. Sept. 21, 2022) (explaining that the plaintiff need not plead Rule 4(k)(2) in order
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`for the Court to consider it as a basis for personal jurisdiction). In addition, Judge Payne has
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`already held that LGL is subject to personal jurisdiction under Rule 4(k)(2) and LGL does not
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`provide any basis to depart from that holding. See AX Wireless, 2023 WL 7105701, at *4
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`III. CONCLUSION
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`For at least the reasons stated above, LGL’s Motion to Dismiss should be denied. To the
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`extent that the Court determines that there are deficiencies in Eireog’s Amended Complaint (there
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`are not), Eireog requests that the Court grant it leave to amend to address such deficiencies.
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`Dated: August 16, 2024
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`Respectfully submitted,
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`By: /s/ Brett E. Cooper
`Brett E. Cooper (NY SBN 4011011)
`bcooper@bclgpc.com
`Seth Hasenour (TX SBN 24059910)
`shasenour@bclgpc.com
`Jonathan Yim (TX SBN 24066317)
`jyim@bclgpc.com
`Drew B. Hollander (NY SBN 5378096)
`dhollander@bclgpc.com
`Ashley M. Ratycz (IL SBN 6330321)
`aratycz@bclgpc.com
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`BC LAW GROUP, P.C.
`200 Madison Avenue, 24th Floor
`New York, NY 10016
`Tel.: (212) 951-0100
`Fax: (646) 293-2201
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`Attorneys for Plaintiff Eireog Innovations Ltd.
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`7
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`Case 2:24-cv-00239-JRG Document 50 Filed 08/16/24 Page 11 of 11 PageID #: 1487
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was served via electronic service on
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`August 16, 2024.
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`/s/ Brett E. Cooper
`Brett E. Cooper
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`8
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