Case 6:20-cv-00272-ADA Document 43 Filed 08/26/20 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`CIVIL ACTION NO. 6:20-cv-00272-ADA
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`JURY TRIAL DEMANDED
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`VOIP-PAL.COM, INC.,
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`Plaintiff,
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`v.
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`AMAZON.COM, INC.;
`AMAZON.COM SERVICES LLC; and
`AMAZON WEB SERVICES, INC.
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`Defendants.
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`PLAINTIFF VOIP-PAL.COM, INC.’S OPPOSED MOTION TO STRIKE PORTIONS OF THE
`AMAZON DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE OR
`IN THE ALTERNATIVE, MOTION FOR LEAVE TO CONDUCT VENUE DISCOVERY AND
`TO FILE A SURREPLY
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`i
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`Case 6:20-cv-00272-ADA Document 43 Filed 08/26/20 Page 2 of 10
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`ABBREVIATION
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`TABLE OF ABBREVIATIONS
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`TERM
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`VoIP-Pal
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`Amazon
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`The ’606 patent
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`The patent-in-suit
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`WDTX
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`NDCAL
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`Plaintiff VoIP-Pal.com, Inc.
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`Defendants Amazon.com, Inc., Amazon.com
`Services LLC, and Amazon Web Services
`Inc.
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`U.S Patent No. 10,218,606
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`The ’606 patent
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`The Western District of Texas
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`The Northern District of California
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`ii
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`Case 6:20-cv-00272-ADA Document 43 Filed 08/26/20 Page 3 of 10
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`I.
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`INTRODUCTION
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`The Court should strike sections I.A and I.C of Amazon’s Reply and the declarations of Tim
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`Thompson, Bala Kumar, and Vinod Prasad because the arguments and evidence presented in these
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`filings are improper. Months before Amazon filed its Motion to Transfer, VoIP-Pal pointed Amazon
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`to a declaration of Mr. Thompson—an Amazon senior software manager based in WDTX—that
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`Amazon filed in support of a transfer motion in Parus Holdings Inc. v. Amazon.com, Inc., Case No.
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`6:19-cv-454-ADA.1 The previous Thompson declaration confirmed that Amazon has two teams of
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`engineers based in WDTX—one led by Mr. Thompson and the other led by Mr. Kumar—that work on
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`the accused Echo products.2 Amazon, however, ignored this evidence in its Motion. VoIP-Pal did not.
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`VoIP-Pal submitted the previous Thompson declaration in support of its Opposition.3 Now, for the
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`first time in its Reply, Amazon submits a new declaration from Mr. Thompson and a declaration from
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`Mr. Kumar to try to show that these witnesses and their respective teams have no relevance to the
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`accused products. Also for the first time in its Reply, Amazon, through Mr. Prasad’s declaration,
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`identifies a team of witnesses in NDCAL who allegedly work on the accused products. Based on this
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`new evidence, Amazon now argues that its NDCAL presence far outweighs its WDTX presence.
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`Because these arguments and evidence are new and because Amazon could have presented them in its
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`Motion, the Court should grant this Motion to Strike because it is well settled that courts in this Circuit
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`refuse to consider new arguments and new evidence raised for the first time in a reply brief.
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`In the alternative, under Local Rule CV-7(f)(1), VoIP-Pal respectfully requests leave to conduct
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`limited venue discovery and to file a surreply to address the new evidence and new arguments that
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`Amazon improperly presented in its Reply. The Court has granted such relief in situations where, like
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`1 Ex. 2; See Parus Holdings Inc. v. Amazon.com, Inc., Case No. 6:19-cv-454-ADA, Dkt. No. 55-1
`(W.D. Tex.).
`2 Ex. 2; Dkt. No. 33-25.
`3 Id.
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`1
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`Amazon, the party seeking transfer introduced new declarations with its reply to support its argument
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`that it does not have relevant witnesses in WDTX. Because the parties dispute the relevance of
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`Amazon’s WDTX-based witnesses, granting such relief in this case is warranted.
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`II.
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`ARGUMENT
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`A.
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`The Court Should Strike Sections I.A and I.C of Amazon’s Reply and the
`Thompson, Kumar, and Prasad Declarations.
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`The Court should strike sections I.A and I.C of Amazon’s Reply and the Thompson, Kumar,
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`and Prasad declarations because they introduce new arguments and new evidence. Under the Court’s
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`Local Rules, a motion “must include all affidavits, deposition transcripts, or other documents
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`supporting the relied upon facts.”4 In this Circuit, a party is prohibited from arguing new information
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`in replies because it denies the non-movant the opportunity to be heard.5 Not only are the arguments
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`and evidence that Amazon presented new, they could have and should have been presented in
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`Amazon’s Motion.
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`1. The Thompson and Kumar declarations and the arguments based on these
`declarations are new and should be struck.
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`The Thompson and Kumar declarations should be struck because they constitute new evidence
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`to make new arguments in support of the location of relevant Amazon witnesses. Amazon did not
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`submit this new evidence merely to respond to VoIP-Pal’s Opposition. Rather, the Thompson and
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`Kumar declarations are a desperate attempt to cure the deficiencies that VoIP-Pal raised regarding
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`Amazon’s initial evidence. In its Motion, Amazon merely relied on the declaration of Tony Hardie to
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`support its claims that “Amazon is not aware of any employees who may be witnesses and who are
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`located in the Western District of Texas” and that “no Amazon witnesses are expected to be located in
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`4 See Rule CV-7(d)(1).
`5 See Gillaspy v. Dallas Ind. School Dist., 278 Fed. Appx. 307, 315 (5th Cir. 2008) (“It is the practice
`of [the 5th Cir.] to refuse to consider arguments raised for the first time in reply briefs”); see also
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`2
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`the Western District of Texas.”6 Now, Amazon uses the Thompson and Kumar declarations to argue
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`that while it does have employees located in WDTX who work on the accused products, these
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`employees are allegedly irrelevant to the aspects of Amazon’s products that Amazon believes have
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`been accused of infringement.7 Not only is this argument new, it is based on evidence that was already
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`in Amazon’s possession and could have been addressed in Amazon’s Motion.
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`VoIP-Pal’s reliance on the previous Thompson declaration, which discusses the responsibilities
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`of his team and Mr. Kumar’s team, should have come as no surprise to Amazon and is no excuse for
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`Amazon’s belated submission of the Thompson and Kumar declarations in this case. During the meet
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`and confer that led to Amazon’s Motion, Amazon asked VoIP-Pal to identify Amazon witnesses
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`located in WDTX.8 In response, VoIP-Pal specifically alerted Amazon to the previous Thompson
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`declaration as confirming “that Amazon has two teams of engineers based in Austin [the Thompson
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`team and the Kumar team] responsible for the design and development of the accused Amazon Echo
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`and Fire devices identified in the Original Complaint.”9 Thus, Amazon was already aware of the
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`evidence that VoIP-Pal intended to submit with its Opposition yet chose to ignore it. Amazon cannot
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`credibly claim that it could not make the new arguments that it makes now in its Motion. As such,
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`these arguments should be struck.
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`2. The Prasad declaration and the arguments based on this declaration are new
`and should be struck.
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`The Prasad declaration also should be struck because it constitutes new evidence in support of
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`new arguments regarding the presence of Amazon witnesses in NDCAL. Despite generally arguing
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`that it has witnesses located in NDCAL, Amazon could not muster the name of a single relevant
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`Calvasina v. Wal-Mart Real Estate Bus. Tr., 899 F. Supp. 2d 590, 608 (W.D. Tex. 2012) (refusing to
`consider arguments raised for the first time in reply).
`6 Dkt. No. 26 at p. 13.
`7 Dkt. No. 41 at p. 1.
`8 Ex. 1.
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`witness located in NDCAL to support its Motion.10 In fact, Amazon’s entire argument regarding its
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`NDCAL presence was limited to two sentences near the end of its Motion: “Amazon employees who
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`worked on the accused technology are located in Seattle, Toronto, the San Francisco Bay Area, and
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`India” and “at least some of Amazon’s trial witnesses might be located in the Northern District of
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`California.”11 VoIP-Pal noted this glaring deficiency.12 Yet in its Reply, Amazon leads with the
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`argument that it has witnesses in NDCAL and devotes the better part of two full paragraphs to its
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`newfound witnesses in NDCAL, relying heavily on the Prasad declaration.13 Amazon should not be
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`allowed to fill the void VoIP-Pal identified with its new evidence.
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`Amazon tries to downplay its failure to identify Mr. Prasad and his team in its Initial
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`Disclosures served in VoIP-Pal’s previous case against Amazon.14 But Amazon’s excuse does not
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`justify its failure to identify Mr. Prasad and his team in Amazon’s Motion. The disclosure of Mr.
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`Prasad and his team and the other new venue facts contained in the Prasad declaration materially alters
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`the convenience of witnesses analysis. Indeed, based on these new facts, Amazon argues for the first
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`time that “Amazon’s presence in the NDCA greatly outweighs its presence in Austin.”15 Amazon
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`possessed its new facts at the time it filed its Motion and chose not to present them; Amazon should
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`not be allowed to do so now.
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`B.
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`The Court Should Grant VoIP-Pal Leave to Conduct Venue Discovery and to File
`a Surreply.
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`Even if the Court does not strike Amazon’s new evidence and new arguments, which it should,
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`the Court should, at a minimum, grant VoIP-Pal leave to conduct venue discovery and to file a
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`9 Ex. 2 at p.2.
`10 Dkt. No. 26 at pp. 13-14.
`11 Id. (emphasis added).
`12 Dkt. No. 33 at pp. 8-9.
`13 Dkt. No. 41 at pp. 1-3.
`14 Id. at p. 4.
`15 Id. at p. 3.
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`surreply. The Court generally grants leave to conduct targeted discovery with regard to motions to
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`transfer venue.16 Because broad discovery is generally favored, jurisdictional discovery “should only
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`be denied where it is impossible that the discovery ‘could … add[] any significant facts’ that might
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`bear on the jurisdictional determination.”17 Accordingly, such discovery should be granted unless “no
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`amount of information … would strengthen” the movant’s jurisdictional claims.18 Moreover, because
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`evidence of relevant jurisdictional facts is “often largely or wholly in the possession of an adverse
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`party, broad jurisdictional discovery also ensures that jurisdictional disputes will be ‘fully and fairly’
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`presented and decided.”19
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`Venue discovery is particularly warranted in this case because Amazon exploits the
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`information asymmetry that exists between the parties by introducing new venue facts with its Reply
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`that only it had access to. Mr. Prasad, Mr. Thompson, and Mr. Kumar are all senior software
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`managers that work on the accused Amazon Echo products.20 Not surprisingly, Amazon argues that
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`Mr. Prasad and its other unnamed employees who work in NDCAL may be called to testify because
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`they allegedly work on software that enables the calling features on Amazon’s Echo and Echo Show
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`devices.21 Conversely, Amazon argues that Messrs. Thompson and Kumar who work in WDTX are
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`irrelevant because they work on software that facilitates communications between hardware
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`components of the same Echo devices, not communications between different devices.22 These
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`arguments, however, are based solely on Amazon’s definition of relevance. VoIP-Pal has not had the
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`16 See Sample Order Governing Proceeding – Patent Cases, at p. 2 (July 17, 2020).
`17 See Blitzsafe Tex. LLC v. Mitsubishi Elec. Corp., No. 2:17-CV-00430-JRG, 2019 U.S. Dist. LEXIS
`86350, at *13 (E.D. Tex. May 22, 2019) (quoting Alpine View Co. v. Atlas Copco AB, 205 F.3d 208,
`221 (5th Cir. 2000)).
`18 Id. (quoting Wyatt v. Kaplan, 686 F.2d 276, 284 (5th Cir. 1982)).
`19 See Blitzsafe, 2019 U.S. Dist. LEXIS 86350, at *13 (citing Rozier v. Ford Motor Co., 573 F.2d 1332,
`1345 (5th Cir. 1978)).
`20 See Dkt. Nos. 41-1 at ¶¶2-3, 41-2 at ¶2, 41-3 at ¶2.
`21 Dkt. No. 41 at pp. 1-2.
`22 Id.
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`opportunity to cross-examine Amazon’s new declarants and present counter evidence from these same
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`witnesses in response to their present statements. Indeed, the previous Thompson declaration shows
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`that Messrs. Thompson and Kumar and their teams are potentially relevant witnesses in WDTX and
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`discovery will likely reveal significant facts that bear on their teams’ relevance to this case.23
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`The Court has granted leave to conduct venue discovery and to file a surreply in situations
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`where there is a substantive dispute over the relevance of certain employees of the defendant based on
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`evidence submitted in a reply brief, which is the situation in this case.24 In MV3 Partners LLC v. Roku,
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`Inc., Roku moved to transfer the case from WDTX to NDCAL.25 Roku submitted a second declaration
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`from its original declarant and a new declaration from another employee with its reply.26 Roku relied
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`on these declarations to argue that none of its Austin-based employees worked on the accused
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`functionalities and that the relevant employees were located in NDCAL.27 The Court, sua sponte,
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`ordered that MV3 Partners be allowed to depose a corporate representative of Roku to establish which
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`employees would be relevant to the case and their geographic location and to file a surreply.28
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`In this case, Amazon submitted the Prasad, Thompson, and Kumar declarations for the same
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`purpose as Roku did—to try to show that Amazon’s Austin-based employees do not work on what
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`Amazon believes are the accused functionalities. Accordingly, the Court should grant VoIP-Pal leave
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`to at least (1) depose Messrs. Prasad, Thompson, and Kumar, (2) obtain any documents reviewed by
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`these declarants in preparing their declarations, including but not limited to the documents referred to
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`in paragraph 5 of the Prasad declaration regarding the number of locations and workers that Amazon
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`23 Dkt. No. 33-25.
`24 See MV3 Partners LLC v. Roku, Inc., Case No. 6-18-cv-00308-ADA, Dkt. No. 58 (W.D. Tex.).
`25 Id. at Dkt. No. 52.
`26 Id. at Dkt. Nos. 57-1-, 57-2.
`27 Id. at Dkt. Nos. 57 at p. 2-3, 57-1-, 57-2.
`28 Id. at Dkt. No. 58.
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`has in NDCAL, (3) obtain documents sufficient to show the number of locations and workers that
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`Amazon has in WDTX, and (4) file a surreply to respond to Amazon’s new arguments.
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`III. CONCLUSION
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`To uphold equal application of the Court’s rules and to be fair, the Court should strike Sections
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`I.A and I.C of Amazon’s Reply and the Prasad, Thompson, and Kumar declarations. To the extent that
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`the Court allows these portions, then VoIP-Pal respectfully requests leave to conduct venue discovery
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`and to file a surreply to respond to the new facts and new arguments raised in Amazon’s Reply.
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`Dated: August 26, 2020
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`Respectfully submitted,
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` By: /s/Lewis E. Hudnell, III
`Lewis E. Hudnell, III
`lewis@hudnelllaw.com
`Nicolas S. Gikkas
`nick@gikkaslaw.com
`Hudnell Law Group P.C.
`800 W. El Camino Real Suite 180
`Mountain View, California 94040
`T: 650.564.3698
`F: 347.772.3034
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`ATTORNEYS FOR PLAINTIFF
`VOIP-PAL.COM, INC.
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`Case 6:20-cv-00272-ADA Document 43 Filed 08/26/20 Page 10 of 10
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who are deemed to have consented to
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`electronic service are being served with a copy of PLAINTIFF VOIP-PAL.COM, INC.’S OPPOSED
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`MOTION TO STRIKE PORTIONS OF THE AMAZON DEFENDANTS’ REPLY IN SUPPORT OF
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`MOTION TO TRANSFER VENUE OR IN THE ALTERNATIVE, MOTION FOR LEAVE TO
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`CONDUCT VENUE DISCOVERY AND TO FILE A SURREPLY via the Court’s CM/ECF system
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`under the Federal Rules of Civil Procedure and Local Rule CV-5(b)(1) this 26th day of August, 2020.
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`By: /s/Lewis E. Hudnell, III
`Lewis E. Hudnell, III
`lewis@hudnelllaw.com
`Hudnell Law Group P.C.
`800 W. El Camino Real Suite 180
`Mountain View, California 94040
`T: 650.564.3698
`F: 347.772.3034
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`CERTIFICATE OF CONFERENCE
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`Under Local Rule CV-7(i), the undersigned counsel for VoIP-Pal met and conferred with
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`counsel for Amazon in good faith to try to resolve the matter presented by this Motion. Amazon
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`opposes the Motion and did not agree to the requested relief.
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`/s/Lewis E. Hudnell, III
`Lewis E. Hudnell, III
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