Case 6:20-cv-00272-ADA Document 44 Filed 08/30/20 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`VOIP-PAL.COM, INC.,
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`Plaintiff
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`v.
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`CASE NO. 6:20-cv-00272-ADA
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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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`AMAZON’S OPPOSITION TO VOIP-PAL’S MOTION TO STRIKE OR
`CONDUCT VENUE DISCOVERY AND FILE A SUR-REPLY TO AMAZON’S
`REPLY IN SUPPORT OF ITS MOTION TO TRANSFER VENUE
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`Case 6:20-cv-00272-ADA Document 44 Filed 08/30/20 Page 2 of 12
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`TABLE OF CONTENTS
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`I. 
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`II. 
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`INTRODUCTION ............................................................................................................. 1 
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`AMAZON’S REPLY ARGUMENTS AND DECLARATIONS DIRECTLY
`RESPOND TO VOIP-PAL’S OPPOSITION ARGUMENTS. ......................................... 2 
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`A. 
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`B. 
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`Amazon Properly Responded to VoIP-Pal’s Misrepresentations of Tim
`Thompson’s Prior Declaration Testimony. ............................................................ 2 
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`Vinod Prasad’s Declaration and Amazon’s Arguments Related to That
`Declaration Properly Responded to VoIP-Pal’s Opposition Arguments. .............. 4 
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`III. 
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`VOIP-PAL’S REQUEST FOR VENUE DISCOVERY AND A SUR-REPLY
`SHOULD BE DENIED. .................................................................................................... 6 
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`IV. 
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`CONCLUSION .................................................................................................................. 8 
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`TABLE OF AUTHORITIES
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`CASES
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` PAGE(S)
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`Avery v. Colvin,
`605 F. App’x 278 (5th Cir. 2015) ..............................................................................................2
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`C&M Oilfield Rentals, LLC v. Location Illuminator Techs., LLC,
`No. PE:18-CV-00039-DC-DF, 2020 WL 4708714 (W.D. Tex. July 13, 2020) ........................2
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`Calvasina v. Wal-Mart Real Estate Bus. Tr.,
`899 F. Supp. 2d 590 (W.D. Tex. 2012) ......................................................................................6
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`Gillaspy v. Dallas Indep. Sch. Dist.,
`278 F. App’x 307 (5th Cir. 2008) ..............................................................................................6
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`Horak v. Glazer’s Wholesale Drug Co.,
`No. 06-10854, 2007 WL 713154 (5th Cir. Mar. 6, 2007)..........................................................2
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`MV3 Partners, LLC v. Roku, Inc.,
`No. 6:18-cv-00308-ADA (W.D. Tex.).......................................................................................7
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`I.
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`INTRODUCTION
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`Despite VoIP-Pal’s repeated assertions that Amazon raised “new arguments” and submit-
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`ted “new evidence” in its Reply in support of its Motion to Transfer (“Reply” (Dkt. No. 41)),
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`nothing in Amazon’s Reply was new. Amazon’s position is, and has always been, that it has no
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`relevant witnesses in this District because none of its employees in the District worked on the
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`accused calling and messaging functionality. In response, VoIP-Pal injected two Austin-based
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`Amazon employees into the case, Tim Thompson and Bala Kumar, by misrepresenting the sub-
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`stance of a declaration signed by Mr. Thompson and submitted in a different case. VoIP-Pal’s
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`opposition to Amazon’s Motion to Transfer also made misleading arguments about the size of
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`Amazon’s presence in Austin, claimed a need for discovery on a “contact list” feature that VoIP-
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`Pal speculated was developed in Austin, and asserted that Amazon provided insufficient evidence
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`about its employees within the Northern District of California who worked on the accused func-
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`tionality. Amazon responded to all of these arguments in its Reply and included declarations that
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`addressed each issue raised by VoIP-Pal. Accordingly, VoIP-Pal’s motion to strike Amazon’s
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`Reply arguments and declarations should be denied because they all properly respond to VoIP-
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`Pal’s arguments.
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`VoIP-Pal’s alternative request for venue discovery and a sur-reply should also be denied.
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`VoIP-Pal represented to this Court and Amazon that it did not need venue discovery from Amazon,
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`that briefing on Amazon’s Motion to Transfer would be closed with the filing of Amazon’s Reply,
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`and that the Motion should be decided without delay. (Aug. 7, 2020 Hearing Tr. at 38:22-39:10.)
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`VoIP-Pal was well-aware of Amazon’s positions when it made these representations because
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`VoIP-Pal was already in possession of Amazon’s Motion to Transfer and Mr. Thompson’s prior
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`declaration. Because Amazon’s Reply arguments and declarations added nothing new, VoIP-Pal
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`should be held to its decision to waive venue discovery from Amazon and the Court should decide
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`Amazon’s Motion to Transfer without delay.
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`II.
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`AMAZON’S REPLY ARGUMENTS AND DECLARATIONS DIRECTLY
`RESPOND TO VOIP-PAL’S OPPOSITION ARGUMENTS.
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`Although courts in this Circuit generally “decline to consider arguments made for the first
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`time in a reply brief,” arguments “made in response to an argument in the [opposing party’s] brief”
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`are properly within the scope of reply. Avery v. Colvin, 605 F. App’x 278, 283-84 (5th Cir. 2015)
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`(concluding that “an appellant’s rebuttal in its reply brief of an argument made by an appellee in
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`its brief” was proper where the appellee “is the one who injected the matter”). See also Horak v.
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`Glazer’s Wholesale Drug Co., No. 06-10854, 2007 WL 713154, at *4 n.3 (5th Cir. Mar. 6, 2007)
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`(“theory was properly before the district court” where the appellant “asserted the … theory in his
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`response brief” and the appellee “addressed the theory in its reply brief”). Declarations in support
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`of arguments made in reply briefs that respond to the opposing party’s arguments are likewise
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`proper reply evidence. C&M Oilfield Rentals, LLC v. Location Illuminator Techs., LLC, No.
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`PE:18-CV-00039-DC-DF, 2020 WL 4708714, at *2 (W.D. Tex. July 13, 2020) (“As the ‘new
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`arguments’ that [defendant] seeks to strike are simply rebuttals to evidence that [defendant] itself
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`introduced, the Court finds that [plaintiff] properly included the [witness] declarations. Accord-
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`ingly, the declarations shall not be stricken on this ground.”).
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`Here, the arguments and declarations that VoIP-Pal seeks to strike are well within the scope
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`of reply because they directly respond to arguments made in VoIP-Pal’s Opposition to Amazon’s
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`Motion to Transfer (“Opp.” (Dkt. No. 33)).
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`A.
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`Amazon Properly Responded to VoIP-Pal’s Misrepresentations of Tim
`Thompson’s Prior Declaration Testimony.
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`In its Motion to Transfer, Amazon specifically explained that there are no Amazon em-
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`ployees within the Western District of Texas who designed, developed, managed, or otherwise
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`worked on any aspect of the accused calling and messaging functionality. (Motion to Transfer
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`(Dkt. No. 26) at 7.) Amazon supported this fact with a declaration from an engineer who was on
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`the team that built the accused functionality. (Dkt. No. 26-3 (“Hardie Decl.”), ¶¶ 12-13.) In re-
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`sponse, VoIP-Pal cited a declaration from an Amazon employee located in Austin, Tim Thompson,
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`that was submitted in a different case to allege that members of his team “concentrate on develop-
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`ing the communications functionality” and that a team led by one of his Austin colleagues, Bala
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`Kumar, “is generally responsible for facilitating communications between the hardware compo-
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`nents.” (Opp. at 10 (citing Dkt. No. 33-25, ¶ 5).) Amazon then explained in its Reply and through
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`declarations from Messrs. Thompson and Kumar that VoIP-Pal’s arguments were misleading be-
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`cause the Austin teams identified by VoIP-Pal did not work on the accused functionality and be-
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`cause Mr. Thompson’s prior declaration discussed hardware communications within a device ra-
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`ther than calls and messages between different devices, which is the subject matter of VoIP-Pal’s
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`asserted patent. (Reply at 1; Dkt. No. 41-02 (“Thompson Decl.”), ¶¶ 4-6; Dkt. No. 41-03 (“Kumar
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`Decl.”), ¶¶ 4-5.) Thus, it was VoIP-Pal who injected Messrs. Thompson and Kumar into this case,
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`and Amazon’s Reply and declarations simply responded to VoIP-Pal’s misrepresentations about
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`them and their teams.
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`VoIP-Pal’s assertion that Amazon’s Reply arguments and declarations should be stricken
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`because VoIP-Pal’s counsel cited Mr. Thompson’s earlier declaration in correspondence ex-
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`changed between counsel prior to Amazon filing its Motion to Transfer is similarly without merit.
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`VoIP-Pal’s correspondence merely alleged based on Mr. Thompson’s declaration that “Amazon
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`has two teams of engineers based in Austin responsible for the design and development of the
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`accused Amazon Echo and Fire devices identified in the Original Complaint.” (Dkt. No. 43-3 at
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`3 (emphasis added).) Amazon addressed this allegation in its Motion to Transfer by explaining
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`that no Austin-based Amazon employees worked on the accused calling and messaging function-
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`ality. (Motion to Transfer at 6-7.) VoIP-Pal’s correspondence did not allege that Messrs. Thomp-
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`son and Kumar supposedly lead teams that work on “communications” between accused devices,
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`as VoIP-Pal did in its Opposition. Amazon was under no obligation to anticipate that VoIP-Pal’s
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`Opposition would misrepresent Mr. Thompson’s declaration in this way. Amazon was only re-
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`quired to set forth why transfer to the Northern District of California was appropriate under 28
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`U.S.C. § 1404(a). Amazon did just that by demonstrating, among other things, that no relevant
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`witnesses reside within this District. Amazon’s Reply and accompanying declarations then
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`properly responded to arguments raised by VoIP-Pal in its Opposition, including VoIP-Pal’s mis-
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`leading arguments about Messrs. Thompson and Kumar and their teams.
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`Because the Thompson and Kumar declarations and Amazon’s arguments about them di-
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`rectly respond to arguments raised by VoIP-Pal in its Opposition, the Court should deny VoIP-
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`Pal’s motion to strike those declarations and arguments.
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`B.
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`Vinod Prasad’s Declaration and Amazon’s Arguments Related to That
`Declaration Properly Responded to VoIP-Pal’s Opposition Arguments.
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`VoIP-Pal’s motion to strike the declaration of Vinod Prasad and Amazon’s arguments
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`about that declaration should likewise be denied. Mr. Prasad’s declaration is responsive to several
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`arguments raised in VoIP-Pal’s Opposition.
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`First, Amazon explained in its Motion to Transfer that some Amazon employees who
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`worked on the accused calling and messaging functionality reside in the San Francisco Bay Area
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`and that they may be witnesses in this case. (Motion to Transfer at 13-14; Hardie Decl., ¶ 9.) In
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`its Opposition, VoIP-Pal objected that Amazon did not “provid[e] any specifics” about those Bay
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`Area employees and did not identify any such employees “by name.” (Opp. at 8.) Although
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`Amazon did not believe that it was necessary to identify any such Bay Area employees because
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`another Amazon employee, Tony Hardie, testified about them and their connection to this case,
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`Amazon addressed VoIP-Pal’s alleged concerns with the declaration from Mr. Prasad, who leads
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`the team in the Bay Area that works on the accused functionality. (Dkt. No. 41-01 (“Prasad
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`Decl.”), ¶ 3; Reply at 2.)
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`Second, VoIP-Pal argued in its Opposition that the Amazon’s Echo devices “store a list of
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`contacts relating to the caller profiles” and that “VoIP-Pal needs discovery on this family of de-
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`vices to understand how they store and access information and route calls.” (Opp. at 10.) VoIP-
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`Pal then speculated that Amazon employees knowledgeable about this contact list feature might
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`be found in Austin because Amazon is hiring in Austin for engineers to work on Amazon’s Echo
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`devices and Alexa application. (Opp. at 10-11.) Mr. Prasad’s declaration and Amazon’s Reply
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`refuted this speculation by explaining that the team responsible for developing the contact list
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`feature work out of Amazon’s Seattle and India offices. (Prasad Decl., ¶ 4; Reply at 1.)
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`Third, VoIP-Pal’s Opposition presented a misleading, one-sided argument about the size
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`of Amazon’s presence in the Western District of Texas. (Opp. at 14-15.) According to VoIP-Pal,
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`the “local interest” transfer analysis factor “strongly weighs against transfer” because Amazon has
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`a few thousand employees and has several offices and warehouses in the Western District of Texas.
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`(Id. (emphasis in original).) Mr. Prasad’s declaration and Amazon’s Reply responded to this ar-
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`gument by showing that, to the extent it is relevant (as VoIP-Pal contends), Amazon’s Northern
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`District of California presence is far larger than its Western District of Texas presence. (Prasad
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`Decl., ¶ 5; Reply at 3.)
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`Accordingly, Mr. Prasad’s declaration and Amazon’s arguments about his declaration are
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`proper reply evidence and arguments because they directly respond to VoIP-Pal’s Opposition ar-
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`guments.1
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`III. VOIP-PAL’S REQUEST FOR VENUE DISCOVERY AND A SUR-REPLY
`SHOULD BE DENIED.
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`VoIP-Pal represented to this Court and Amazon that it did not need venue discovery from
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`Amazon and several other defendants. (Aug. 7, 2020 Hearing Tr. at 38:22-39:1.) VoIP-Pal also
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`represented to the Court that “briefing on [those defendants’ motions to transfer] will be closed”
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`when the defendants file their replies, thereby placing “those motions … in a position for decision”
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`and making the cases “ready to go.” (Id. at 39:5-6.) When VoIP-Pal made these representations,
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`Amazon had already filed its Motion to Transfer and VoIP-Pal had Mr. Thompson’s prior decla-
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`ration for months. (Dkt. No. 43-3.) As such, VoIP-Pal was well aware of Messrs. Thompson and
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`Kumar and the fact that Amazon had employees who worked on the accused functionality in the
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`Bay Area when VoIP-Pal waived venue discovery from Amazon and asked the Court to decide
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`Amazon’s Motion to Transfer without delay. The only thing that has changed since VoIP-Pal
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`made those representations is that Amazon filed its Reply and the declarations of Messrs. Thomp-
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`son, Kumar, and Prasad. But, as explained above, neither the Reply nor the declarations presented
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`any new arguments and, instead, simply responded to arguments and issues that VoIP-Pal itself
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`injected into the briefing process. Amazon agrees with VoIP-Pal’s original position that briefing
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`1 The cases cited by VoIP-Pal for the proposition that “a party is prohibited from arguing new
`information in replies” are inapposite because they involved arguments that were never raised prior
`to the reply in question. In Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App’x 307 (5th Cir. 2008),
`the appellee “did not raise the exhaustion argument as to the claims on appeal until its reply brief
`in the district court.” Id. at 314. In Calvasina v. Wal-Mart Real Estate Bus. Tr., 899 F. Supp. 2d
`590 (W.D. Tex. 2012), the defendant made an argument in its reply that was “contrary to its own
`motion.” Id. at 608. In contrast, as explained above, Amazon never changed its position that it
`has no relevant witnesses in Texas and did not raise any new arguments in its Reply.
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`on Amazon’s Motion to Transfer is closed and that the Court’s decision on the Motion should not
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`be delayed.
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`VoIP-Pal also cites MV3 Partners, LLC v. Roku, Inc., No. 6:18-cv-00308-ADA (W.D.
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`Tex.), to argue for venue discovery because this Court permitted the plaintiff in that case to take
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`the deposition of a reply declarant. But the plaintiff in MV3 identified accused functionality and
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`personnel knowledgeable about that functionality who were located in Austin. (Id. at Dkt. No. 55
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`at 3-4.) Here, VoIP-Pal merely speculated that there might be Amazon personnel in Austin knowl-
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`edgeable about contact lists in the accused products. (Opp. at 10.) Amazon refuted that specula-
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`tion by demonstrating that the personnel who work on contact lists in the accused products are
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`located in Seattle and India. (Prasad Decl., ¶ 4; Reply at 1.) Therefore, unlike the plaintiff in MV3,
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`VoIP-Pal has not provided any justification for venue discovery.
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`Additionally, VoIP-Pal’s request for discovery regarding the size of Amazon’s presence in
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`the Western District of Texas and the Northern District of California is a waste of time for both
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`the Court and the parties. Amazon stated in its Motion to Transfer that the local interest factor is
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`neutral given Amazon’s presence in both locations. (Motion to Transfer at 15.) VoIP-Pal then
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`provided data about the size of Amazon’s Western District of Texas presence—with no corre-
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`sponding data about the size of Amazon’s Northern District of California presence—to mislead-
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`ingly argue that “this [local interest] factor strongly weighs against transfer.” (Opp. at 15 (empha-
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`sis in original).) Amazon properly responded in its Reply to this one-sided presentation of facts
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`by showing that Amazon’s Northern District of California presence far exceeds its Western Dis-
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`trict of Texas presence. (Reply at 3.) Further discovery into the size of Amazon’s presence in
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`either location would be pointless because the critical fact is not that Amazon has personnel and
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`offices in these locations, but that it has no relevant witnesses in Austin. Moreover, when VoIP-
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`Pal told the Court that it did not need venue discovery, it knew that it intended to present one-sided
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`evidence about the size of Amazon’s Western District of Texas presence without addressing the
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`size of Amazon’s Northern District of California presence. VoIP-Pal’s assertion that it now needs
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`discovery on the size of Amazon’s presence in each venue is disingenuous, at best.
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`For these reasons, the Court should hold VoIP-Pal to its decision to waive venue discovery
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`from Amazon and should deny VoIP-Pal’s belated request for venue discovery and a sur-reply.
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`IV. CONCLUSION
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`The Court should deny VoIP-Pal’s motion to strike and deny VoIP-Pal’s alternative request
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`for venue discovery and a sur-reply brief.
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`Dated: August 30, 2020
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`Respectfully submitted,
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`/s/ M. Craig Tyler
`M. Craig Tyler, Bar No. 00794762
`Perkins Coie LLP
`500 W 2nd St, Suite 1900
`Austin, TX 78701-4687
`Tel. No. 737.256.6113
`Fax No. 737.256.6300
`
`Daniel T. Shvodian, Admitted Pro Hac Vice
`James F. Valentine, Admitted Pro Hac Vice
`Wing H. Liang, Admitted Pro Hac Vice
`Perkins Coie LLP
`3150 Porter Drive
`Palo Alto, CA 94304-1212
`Tel. No. 650.838.4300
`Fax No. 650.838.4350
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`ATTORNEYS FOR DEFENDANTS
`Amazon.com, Inc.; Amazon.Com, Services
`LLC; and Amazon Web Services, Inc.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on August 30, 2020, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(b).
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`/s/ M. Craig Tyler
`M. Craig Tyler
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