Case 6:20-cv-00272-ADA Document 46 Filed 09/08/20 Page 1 of 9
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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 REPLY IN SUPPORT OF 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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`Case 6:20-cv-00272-ADA Document 46 Filed 09/08/20 Page 2 of 9
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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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`Western District of Texas
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`Northern District of California
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`ii
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`Case 6:20-cv-00272-ADA Document 46 Filed 09/08/20 Page 3 of 9
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`I.
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`INTRODUCTION
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`Amazon provides no legitimate reason for submitting new evidence and new arguments in its
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`Reply. Amazon falsely claims that it has always held the position that it has no WDTX employees
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`who work on the accused calling and messaging technology—Amazon never made this argument in its
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`Motion. Amazon also never argued that its NDCAL presence is far greater than its WDTX presence.
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`Amazon introduced new facts to make these new arguments, not to merely respond to VoIP-Pal’s
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`arguments. VoIP-Pal did not and could not waive venue discovery as to any of this material because
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`Amazon introduced this material after the alleged waiver. Thus, the Court should strike the new
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`material or should grant VoIP-Pal leave to conduct venue discovery and to file a surreply.
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`II.
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`ARGUMENT
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`The Arguments Based On The Thompson and Kumar Declarations Are Improper.
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`A.
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`Amazon’s Reply and the Thompson and Kumar declarations do not merely respond to VoIP-
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`Pal’s arguments; they change Amazon’s argument. Contrary to what Amazon claims, its Motion
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`actually states that there are no Amazon employees within the WDTX “who designed, developed,
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`managed, or otherwise worked on the accused technology,” not the accused calling and messaging
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`functionality.1 Amazon’s declarant, Tony Hardie, did not support the full scope of Amazon’s original
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`argument because Mr. Hardie limited his declaration to Alexa Calling and Messaging, not all of the
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`accused technology.2 Mr. Hardie does not mention the Amazon WDTX witnesses who work on the
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`accused Echo devices. But in its Reply, Amazon uses the Thompson and Kumar declarations to make
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`the new argument that while Messrs. Thompson’s and Kumar’s WDTX teams work on the accused
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`1 Compare Dkt. No. 44 at 3 with Dkt. No. 26 at 7 (emphasis added).
`2 Dkt. No. 26-3 at ¶13.
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`Case 6:20-cv-00272-ADA Document 46 Filed 09/08/20 Page 4 of 9
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`products, they allegedly do not work on the functionality that Amazon believes has been accused of
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`infringement.3 Tellingly, Amazon cannot point to any part of its Motion where it made this argument.
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`Amazon’s claim that it was VoIP-Pal who injected Messrs. Thompson and Kumar into this case
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`is disingenuous.4 Amazon, not VoIP-Pal, initiated the meet and confer regarding Amazon’s Motion to
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`Transfer and specifically invited VoIP-Pal to identify relevant Amazon WDTX witnesses.5 Amazon
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`claims that it addressed these witnesses in its Motion by arguing that “no Austin-based employees
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`worked on the accused calling and messaging features.”6 But as noted above, that is not what its
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`Motion says. Amazon also erroneously claims that VoIP-Pal’s Opposition asserts that Messrs.
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`Thompson and Kumar lead teams that work on communications between accused devices.7 That is not
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`what VoIP-Pal’s Opposition says—it says that Mr. Thompson works on communications functionality
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`and that Mr. Kumar works on facilitating communications between hardware components.8 These
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`statements do not misrepresent the previous Thompson declaration that VoIP-Pal relies on; they are
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`directly supported by it.9
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`Amazon’s claim it was not obligated to anticipate that VoIP-Pal would misrepresent the
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`previous Thompson declaration is merely an insincere attempt to divert the Court’s attention away
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`from Amazon’s failure to address the previous Thompson declaration in the first place. Amazon knew
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`almost two months before it filed its Motion that VoIP-Pal contended that the Thompson and Kumar
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`teams are relevant to the design and development of the accused Amazon Echo and Fire devices.10 If
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`Amazon truly believed that these witnesses are not relevant for the reasons that it claims now, then
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`3 Dkt. No. 41 at p. 1.
`4 Dkt. No. 44 at p. 3.
`5 Dkt. No. 43-2 at p. 2.
`6 Id. at p 4.
`7 Id.
`8 Dkt. No. 33 at p. 10.
`9 Contra Dkt. No. 44 at p. 4; see Dkt. No. 33-25 at ¶¶4-5.
`10 Dkt. No. 43-3.
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`Amazon could have responded to VoIP-Pal’s letter that first raised the previous Thompson declaration,
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`or at the very least addressed it in its Motion. Tellingly, Amazon did not. Amazon cannot now play
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`like an ostrich, burying its head in the sand and pretending like the parties’ meet and confer and the
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`previous Thompson declaration did not exist only to then raise new arguments in its Reply when
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`Amazon perceived it safe to do so. Amazon never previously contended that it has no WDTX
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`witnesses that work on the calling and messaging functionality that it believes is accused.
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`Consequently, Amazon’s new arguments and new evidence should be struck.
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`B.
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`The Arguments Based On The Prasad Declaration Are Improper.
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`The Prasad declaration also does not merely respond to VoIP-Pal’s Opposition; it adds new
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`evidence. Amazon’s belief that it did not need to identify specific NDCAL witnesses in its Motion is
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`badly mistaken.11 “[T]he moving party must identify specific witnesses and outline the substance of
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`their testimony.”12 Amazon cannot backfill its Motion with witness names and other evidence.
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`One such piece of other evidence is the location of witnesses that work on the accused contact
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`list feature. VoIP-Pal did not raise this feature for the first time in its Opposition; VoIP-Pal identified
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`this feature in its Original Complaint.13 Thus, Amazon did not need to wait until its Reply to submit
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`evidence of witnesses who work on this feature. It should have and could have done so in its Motion.
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`Amazon also could have argued that its NDCAL presence is far larger than its WDTX
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`presence. This new argument is based entirely on the new evidence presented in the Prasad
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`declaration. Amazon’s claim that it needed to respond to VoIP-Pal’s allegedly misleading argument
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`regarding the size of Amazon’s WDTX presence lacks credibility. If Amazon’s NDCAL presence is
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`truly far larger than its WDTX presence, then Amazon would have presented this evidence in its
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`11 Dkt. No. 44 at p. 5.
`12 See Tandy v. Mad Max Cars, LLC, 2020 U.S. Dist. LEXIS 67983, at *9 (W.D. Tex. Apr. 16, 2020).
`13 Dkt. No. 1-2 at p. 5.
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`Motion. The reason Amazon did not is simple: Amazon either did not have the evidence, or it had the
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`evidence and chose not to present it. Either way, the evidence is new and should be struck.
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`C.
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`The Court Should Grant VoIP-Pal’s Request For Leave.
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`Amazon’s argument that VoIP-Pal waived the right to seek venue discovery from Amazon is
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`meritless. Yet again, Amazon misrepresents the record. VoIP-Pal never represented to the Court that
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`it did not need venue discovery from Amazon. Rather, VoIP-Pal stated that it was “not seeking
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`discovery” regarding Amazon’s Motion to Transfer at the time of the scheduling conference.14 But
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`Amazon had not yet submitted its Reply. VoIP-Pal had no way of knowing that Amazon would
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`subsequently introduce new evidence and new arguments in its Reply.
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`Amazon also misrepresents VoIP-Pal’s comments to the Court regarding the readiness of the
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`pending transfer motions in the related cases. VoIP-Pal never asked the Court to decide Amazon’s
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`Motion without delay. In the portion of the transcript that Amazon cites, VoIP-Pal stated that briefing
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`on Apple’s, AT&T’s, and Verizon’s motions would soon close and “that those motions would be in a
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`position for decision.”15 Amazon later raised the potential ripeness of its Motion, not VoIP-Pal.16
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`Amazon is solely responsible for injecting new material in its Reply and therefore has only itself to
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`blame that its Motion is not now ripe. The Court should not fall for Amazon’s twisting of VoIP-Pal’s
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`words and should grant VoIP-Pal leave to take discovery in order to address this new material.
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`Amazon’s attempt to distinguish MV3 Partners v. Roku, Inc. is unavailing. In opposing a
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`motion to transfer, both MV3 and VoIP-Pal identified WDTX witnesses who work on accused
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`products.17 VoIP-Pal did not merely speculate that Amazon has WDTX witnesses who work on the
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`accused products; VoIP-Pal submitted the previous Thompson declaration as evidence of these
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`14 Ex. 3 at 38:25.
`15 Id. at 39:2-6 (emphasis added).
`16 Id. at 50:16-51:15.
`17 Cf. MV3 Partners v. Roku, Inc., 6:18-cv-308-ADA, Dkt. No. 55 at pp. 9-10 (W.D. Tex.).
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`Case 6:20-cv-00272-ADA Document 46 Filed 09/08/20 Page 7 of 9
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`witnesses.18 In their replies, both Roku and Amazon submitted new evidence to support their
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`respective arguments that the WDTX witnesses identified do not work on the accused functionality.19
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`If anything, Amazon’s improperly submitted evidence is more egregious because, unlike Roku,
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`Amazon did not argue in its Motion that it has no WDTX witnesses who work on the accused
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`functionality.20 Thus, just as in MV3 Partners, venue discovery is needed to resolve the dispute over
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`the relevance of Amazon’s WDTX witnesses.21
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`Finally, Amazon’s argument that VoIP-Pal’s request for the documents that Mr. Prasad
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`reviewed to prepare his declaration is wasteful makes little sense. If these documents were useless,
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`then Amazon would not have had Mr. Prasad review them.22 And if Amazon really believes that the
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`local interest factor is neutral, then it would not be relying on the requested documents to argue that its
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`NDCAL presence is far greater than its WDTX presence.23 The only reason Amazon perceived the
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`evidence of its relative size to be one sided was because Amazon failed to submit any such evidence
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`with its Motion. VoIP-Pal did not and could not waive venue discovery as to new facts that Amazon
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`chose to spring on VoIP-Pal after the alleged waiver. The Court should not let Amazon use the alleged
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`waiver as an excuse for its belated and improper submissions.
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`III. CONCLUSION
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`In conclusion, Amazon improperly submitted new material to fill gaps in its Motion, not to
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`merely respond to VoIP-Pal’s Opposition. Thus, the Court should grant VoIP-Pal’s Motion to Strike.
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`In the alternative, the Court should reject Amazon’s meritless waiver argument and grant VoIP-Pal
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`leave to conduct venue discovery and to file a surreply.
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`18 Dkt. No. 33 at pp. 9-10; Dkt. No. 33-25.
`19 Cf. MV3 Partners, Dkt. No. 57 at pp. 2-3.
`20 Cf. id., Dkt. No. 52 at pp. 3-4.
`21 Cf. id., Dkt. No. 58.
`22 Dkt. No. 41-1 at ¶5
`23 Dkt. No. 41 at p. 3.
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`Case 6:20-cv-00272-ADA Document 46 Filed 09/08/20 Page 8 of 9
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`Dated: September 8, 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 46 Filed 09/08/20 Page 9 of 9
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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 RPELY IN
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`SUPPORT OF OPPOSED MOTION TO STRIKE PORTIONS OF THE AMAZON DEFENDANTS’
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`REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE OR IN THE ALTERNATIVE,
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`MOTION FOR LEAVE TO CONDUCT VENUE DISCOVERY AND TO FILE A SURREPLY via
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`the Court’s CM/ECF system under the Federal Rules of Civil Procedure and Local Rule CV-5(b)(1)
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`this 8th day of September, 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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`7
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