Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 1 of 21 PageID #: 441
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`T-MOBILE USA, INC., and T-MOBILE
`US, INC.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`LYFT, INC.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`UBER TECHNOLOGIES, INC., d/b/a UBER
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`WHATSAPP, INC.
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
`
`
`
`
`
`
`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
`
`
`
`
`
`CASE NO. 2:21-cv-00026-JRG
`(Member Case)
`
`
`
`
`
`CASE NO. 2:21-cv-00029-JRG
`(Member Case)
`
`
`
`
`LYFT, INC.’S MOTION TO DISMISS FOR IMPROPER VENUE
`
`
`
`
`
`
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 2 of 21 PageID #: 442
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION .............................................................................................................. 1
`STATEMENT OF ISSUES ................................................................................................ 2
`PROCEDURAL HISTORY AND FACTUAL BACKGROUND ..................................... 2
`LEGAL STANDARD ......................................................................................................... 3
`ARGUMENT ...................................................................................................................... 3
`A. Lyft Does Not Reside in This District ......................................................................... 3
`B. AGIS Cannot Show That Lyft Has a Regular and Established Place of Business in
`this District .................................................................................................................. 4
`1. The Alleged Plano Express Drive Location was Closed for Over a Year Before
`AGIS Filed Its Lawsuit and Cannot Serve as a Basis for Venue. ...................... 4
`2. The Closed Plano Express Drive Location Could Not Support Venue Against
`Lyft Even If It Were Open. ................................................................................ 5
`Pickup Locations Do Not Create a Sufficient Basis for Venue against Lyft. .... 7
`3.
`4. Vehicles of Drivers Cannot Serve as a Basis for Venue Against Lyft ............. 10
`a. Driver’s Vehicles are Not Regular and Established Places of Business for
`Lyft. ........................................................................................................... 10
`b. Vehicles of Drivers using the Lyft App are Not Places “Of Lyft” ........... 12
`C. AGIS Cannot Show That Lyft Has Infringed the ’838 Patent in This District. ........ 14
`CONCLUSION ................................................................................................................. 15
`
`
`
`I.
`II.
`III.
`IV.
`V.
`
`VI.
`
`
`
`
`
`
`i
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 3 of 21 PageID #: 443
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`CASES
`
`Andra Grp., LP v. Victoria's Secret Stores, LLC,
`No. 4:19-cv-288-ALM-KPJ, 2020 WL 1465894 (E.D. Tex. Mar. 26, 2020) ........................6, 7
`
`AptusTech LLC v. Trimfoot Co.,
`No. 4:19-CV-00133-ALM, 2020 WL 1190070 (E.D. Tex. Mar. 12, 2020) ..............................7
`
`C.R. Bard, Inc. v. AngioDynamics, Inc.,
`No. 2:12-cv-00035-RJS-DAO, 2020 WL 6710423 (D. Utah Nov. 16, 2020) ...........................4
`
`EMED Techs. Corp. v. Repro-Med Sys., Inc.,
`No. 2:17-cv-728-WCB-RSP, 2018 WL 2544564 (E.D. Tex. June 4, 2018) .............................7
`
`Fourco Glass Co. v. Transmirra Prod. Corp.,
`353 U.S. 222 (1957) ...................................................................................................................3
`
`In re Cray Inc.,
`871 F.3d 1355 (Fed. Cir. 2017)........................................................................................ passim
`
`In re ZTE (USA) Inc.,
`890 F.3d 1008 (Fed. Cir. 2018)..................................................................................................3
`
`Int'l Techs. & Sys. Corp. v. Samsung Elecs. Co.,
`No. SA CV 17-1748-DOC, 2018 WL 4963129 (C.D. Cal. June 22, 2018).......................4, 7, 8
`
`Pers. Audio, LLC v. Google, Inc.,
`280 F. Supp. 3d 922 (E.D. Tex. 2017) ...........................................................................3, 4, 5, 8
`
`Phillips v. Baker,
`121 F.2d 752 (9th Cir. 1941) .....................................................................................................9
`
`Schnell v. Peter Eckrich & Sons, Inc.,
`365 U.S. 260 (1961) ...................................................................................................................9
`
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`137 S. Ct. 1514 (2017) ...............................................................................................................3
`
`Uniloc USA, Inc. v. Nutanix, Inc.,
`No. 2:17-cv-00174-JRG, 2017 U.S. Dist. LEXIS 229347 (E.D. Tex. Dec. 6, 2017) ........12, 13
`
`Valeant Pharm. N. Am. LLC v. Mylan Pharm. Inc.,
`978 F.3d 1374 (Fed. Cir. 2020)................................................................................................14
`
`
`
`
`
`
`
`ii
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 4 of 21 PageID #: 444
`
`STATUTES
`
`28 U.S.C. § 1400(b) ...............................................................................................................3, 5, 14
`
`28 U.S.C. § 1406(a) ...............................................................................................................2, 3, 15
`
`OTHER AUTHORITIES
`
`Local Rule 7(a)(1) ............................................................................................................................2
`
`Fed. R. Civ. P. 12(b)(3)................................................................................................................2, 3
`
`
`
`
`
`
`iii
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 5 of 21 PageID #: 445
`
`I.
`
`INTRODUCTION
`
`The Eastern District of Texas is not a proper venue for the instant case. Lyft does not
`
`reside in this District, nor does it have a “regular and established place of business” here (either
`
`when AGIS filed its complaint or thereafter). AGIS bases its venue allegations on incorrect
`
`information and a misunderstanding of the requirements to show proper venue in a patent
`
`infringement lawsuit. Notably, the foundation for several of AGIS’s venue assertions rests on the
`
`erroneous assumption that Lyft maintains an Express Drive location in Plano, Texas. Although
`
`Lyft offered Express Drive services at a Pep Boys site in Plano at one time, it closed over 1.5
`
`years before AGIS filed its Complaint. Moreover, even when the Plano Pep Boys site offered
`
`Express Drive services, the site was not owned by Lyft.
`
`AGIS’s other venue assertions similarly fail. First, AGIS proposes that venue is proper
`
`because Lyft allegedly maintains “dedicated pickup locations” in this District. AGIS identifies a
`
`single purported example of such location—the Plano Pep Boys store. Notwithstanding the fact
`
`that a closed site which was never owned by Lyft cannot serve as a basis for venue, pickup
`
`locations, generally, cannot provide a basis for venue because they fail to meet the “regular and
`
`established place of business” requirements set forth by the Federal Circuit. Second, AGIS
`
`alleges that the vehicles of drivers using the Lyft app provide a basis for venue in this District.
`
`Such vehicles, however, are neither “regular and established places of business” for Lyft, nor are
`
`they places “of Lyft.”
`
`Furthermore, AGIS’s claims regarding U.S. Patent 10,341,838 (“the ’838 Patent”) cannot
`
`proceed in this District because AGIS cannot show that Lyft has committed acts of infringement
`
`here. Notably, AGIS’s assertions regarding this patent require Lyft’s servers to execute a claimed
`
`method. Lyft’s servers are not located in Texas, let alone the Eastern District of Texas, and thus
`
`AGIS cannot show that infringement occurred here. For these reasons, which are described in
`
`
`
`1
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 6 of 21 PageID #: 446
`
`greater detail below, venue is not proper in the Eastern District of Texas. Accordingly, Lyft
`
`respectfully requests this Court to exercise its authority to dismiss this case pursuant to 28 U.S.C.
`
`§ 1406(a), or alternatively, to transfer this case to the Northern District of California, or another
`
`district where venue is proper as to Lyft.1
`
`II.
`
`STATEMENT OF ISSUES
`
`Pursuant to Local Rule 7(a)(1), Lyft identifies the following issue presented in its Rule
`
`12(b)(3) motion:
`
`1. Whether this action should be dismissed under Fed. R. Civ. P. 12(b)(3) and 28 U.S.C.
`
`§ 1406(a) for improper venue as to Lyft in this district, or in the alternative, transferred
`
`to the Northern District of California or another district in which venue is proper as to
`
`Lyft.
`
`III.
`
`PROCEDURAL HISTORY AND FACTUAL BACKGROUND
`
`AGIS filed the instant patent infringement lawsuit against Lyft on January 29, 2021. See
`
`Dkt. 1, Case No. 2:21-cv-00024-JRG (hereinafter “Complaint”). In its Complaint, AGIS
`
`contends that Lyft infringes five related patents—U.S. Patent Nos. 8,213,970, 7,630,724,
`
`7,031,728, 10,299,100 and 10,341,838—that allegedly disclose and claim location-based
`
`technologies. See, e.g., Complaint ¶¶ 20, 28, 41, 57, 72, and 89. AGIS also alleges, in its
`
`complaint, that venue is proper in the Eastern District of Texas because Lyft has committed acts
`
`of infringement here and because Lyft has “regular and established places of business in this
`
`Judicial District.” Id. ¶ 5. In support of the latter contention, AGIS alleges that: (1) Lyft maintains
`
`a Lyft Express Drive location at 928 West Spring Creek Parkway, Plano, Texas 75023; (2) Lyft
`
`
`1 For the reasons described in consolidated defendant Uber Technologies, Inc.’s Motion to Stay, Lyft also supports
`a stay of this case until the standing issue identified in Uber’s Motion to Stay is resolved, in the event the Court
`does not dismiss the case against Lyft for improper venue as requested in the current motion. See Defendant Uber
`Technologies, Inc.’s Motion to Stay Pending Resolution of Standing Issue, AGIS Software Development LLC v. T-
`Mobile USA Inc. et al., No. 2:21-cv-00072, Dkt. 25 (Apr. 23, 2021).
`
`
`
`2
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 7 of 21 PageID #: 447
`
`maintains “dedicated pickup locations” in this district, including at the identified Plano location;
`
`and (3) the vehicles of drivers using the Lyft app are Lyft’s “regular and established places of
`
`business.” Id. ¶¶ 6, 8 & 9.
`
`IV.
`
`LEGAL STANDARD
`
`Under Rule 12(b)(3) of the Federal Rules of Civil Procedure, a party may move to dismiss
`
`an action on the basis of improper venue. Once challenged, the burden of sustaining venue lies
`
`with the plaintiff. In re ZTE (USA) Inc., 890 F.3d 1008, 1013 (Fed. Cir. 2018). Upon a finding
`
`that a case lay venue in the wrong division or district, the district court “shall dismiss, or if it be
`
`in the interest of justice, transfer such case to any district or division in which it could have been
`
`brought.” 28 U.S.C. § 1406(a).
`
`In patent cases, 28 U.S.C. § 1400(b) is the “sole and exclusive provision controlling venue
`
`in patent infringement actions” and is not supplemented by the general venue statutes. TC
`
`Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1519 (2017) (citing Fourco
`
`Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222, 229 (1957)). Pursuant to 28 U.S.C. §
`
`1400(b), venue lies “in the judicial district where the defendant resides” or “where the defendant
`
`has committed acts of infringement and has a regular and established place of business.” 28
`
`U.S.C. § 1400(b). In this district, venue is assessed as of the time the Complaint is filed. Pers.
`
`Audio, LLC v. Google, Inc., 280 F. Supp. 3d 922, 931 (E.D. Tex. 2017).
`
`V.
`
`ARGUMENT
`A. Lyft Does Not Reside in This District
`
`A domestic corporate defendant, like Lyft, “resides” only in its state of incorporation. TC
`
`Heartland, 137 S. Ct. at 1521. Both now and at the time of this lawsuit’s filing, Lyft is and was
`
`incorporated in Delaware. Ex. 1 (hereinafter “Lyft Decl.”) ¶ 4. Accordingly, Lyft’s residence
`
`does not provide a basis for venue in this district.
`
`
`
`3
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 8 of 21 PageID #: 448
`
`B. AGIS Cannot Show That Lyft Has a Regular and Established Place of
`Business in this District
`
`AGIS’s venue assertions in the instant case hinge on Lyft having a regular and established
`
`place of business in this district. Lyft does not, and AGIS cannot provide a contrary showing
`
`under the three-prong test established by the Federal Circuit in In re Cray Inc., 871 F.3d 1355
`
`(Fed. Cir. 2017).
`
`To determine whether a defendant has a “regular and established place of business” for
`
`venue purposes: “(1) there must be a physical place in the district; (2) it must be a regular and
`
`established place of business; and (3) it must be the place of the defendant”. Id. at 1360.
`
`1. The Alleged Plano Express Drive Location was Closed for Over a Year Before
`AGIS Filed Its Lawsuit and Cannot Serve as a Basis for Venue.
`
`In its Complaint, AGIS contends that Lyft maintains an Express Drive location within this
`
`judicial district at 928 West Spring Creek Parkway, Plano, Texas 75023 (hereinafter referred to
`
`as, “the Alleged Plano Express Drive Location”). Complaint at ¶ 6. However, the Alleged Plano
`
`Express Drive Location closed in 2019, well before AGIS filed its Complaint, and therefore
`
`cannot serve as a basis for venue in the present case. Lyft Decl. ¶ 6; see, e.g., Pers. Audio, 280
`
`F. Supp. 3d at 930 (holding that venue is assessed at the time the complaint is filed); C.R. Bard,
`
`Inc. v. AngioDynamics, Inc., No. 2:12-cv-00035-RJS-DAO, 2020 WL 6710423, at *8 (D. Utah
`
`Nov. 16, 2020) (holding that “venue must be established based on the facts existing at the time
`
`the case is filed”); Int'l Techs. & Sys. Corp. v. Samsung Elecs. Co., No. SA CV 17-1748-DOC
`
`(JDEx), 2018 WL 4963129, at *6 (C.D. Cal. June 22, 2018) (analyzing the facts and
`
`circumstances that existed at the time the Complaint was filed when determining whether venue
`
`was proper). Additionally, and importantly, no Express Drive locations currently exist in this
`
`District. Lyft Decl. ¶ 8. Nor did any Express Drive locations exist in this District when this case
`
`was filed. Id.
`
`
`
`4
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 9 of 21 PageID #: 449
`
`The facts of the instant case are analogous to those considered by this Court in Pers. Audio.
`
`In that case, the plaintiff argued that venue was proper in the Eastern District of Texas because,
`
`inter alia, the defendant allegedly maintained office space in Frisco, Texas. Pers. Audio, 280 F.
`
`Supp. 3d at 932. Although the defendant had previously utilized the office space in question for
`
`a time, the defendant ceased using that space to conduct its operations almost two years before
`
`the plaintiff filed suit. Id. In assessing whether venue was proper, this Court concluded that
`
`“venue is determined under § 1400(b) by the facts and situation as of the date suit is filed.” Id. at
`
`931. And, because the plaintiff failed to carry its burden of proving that defendant had a “regular
`
`and established place of business” in the district at the time the complaint was filed, the Court
`
`rejected plaintiff’s allegations to the contrary and found venue to be improper.
`
`In view of this Court’s holding in Pers. Audio, the Alleged Plano Express Drive Location
`
`cannot serve as a basis for venue in the present case. AGIS’s venue assertions in the instant case
`
`are premised on the incorrect assumption that an Express Drive location exists at 928 West Spring
`
`Creek Parkway, Plano, Texas 75023. An Express Drive location at that address does not exist
`
`and has not existed since 2019. Lyft Decl. ¶ 6. Accordingly, the Alleged Plano Express Drive
`
`Location does not provide sufficient grounds to establish venue in this case.
`
`2. The Closed Plano Express Drive Location Could Not Support Venue Against
`Lyft Even If It Were Open.
`
`Even if the Alleged Plano Express Drive Location existed at the time the Complaint was
`
`filed, it could not have provided a basis for venue against Lyft because such location was not a
`
`place “of Lyft.” For a finding of proper venue to be made, the statute requires that the location
`
`at-issue be one “of the defendant.” In re Cray, 871 F.3d at 1362. That is, the location cannot be
`
`a location of defendant’s employees or partners. Id. “The mere fact that a defendant has
`
`advertised that it has a place of business or has even set up an office is not sufficient; the defendant
`
`
`
`5
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 10 of 21 PageID #: 450
`
`must actually engage in business from that location.” Andra Grp., LP v. Victoria's Secret Stores,
`
`LLC, No. 4:19-cv-288-ALM-KPJ, 2020 WL 1465894, at *5 (E.D. Tex. Mar. 26, 2020) (quoting
`
`In re Cray, 871 F.3d at 1363–64). The Federal Circuit identified this as a “make-or-break issue”
`
`with respect to venue. Id. Other relevant considerations for determining whether a place is “of
`
`the defendant” include (1) “whether the defendant owns or leases the place, or exercises other
`
`attributes of possession or control over the place”; (2) whether the defendant “conditioned
`
`employment on an employee’s continued residence in the district or the storing of materials at a
`
`place in the district so that they can be distributed or sold from that place”; (3) marketing and
`
`advertisements, but “only to the extent they indicate that the defendant itself holds out a place for
`
`its business”; (4) the “defendant’s representations that it has a place of business in the district”;
`
`and (5) “the nature and activity of the alleged place of business of the defendant in the district in
`
`comparison with the other places of business of the defendant in other venues” (emphasis
`
`omitted). In re Cray, 871 F.3d at 1363–64.
`
`As previously discussed, although the Alleged Plano Express Drive Location cannot serve
`
`as a basis for venue because it closed over a year ago, even if the location existed when AGIS
`
`filed its complaint, Lyft did not “engage in business,” as required by the law, at this Express Drive
`
`location. Express Drive is a program that connects drivers with rental cars provided and managed
`
`by Express Drive partners. Lyft Decl. ¶ 5. A driver can rent a vehicle through the Express Drive
`
`program at an Express Drive site. See id. ¶¶ 5–6. The Alleged Plano Express Drive Location—
`
`where no Express Drive location has existed for over 1.5 years—has been, and is currently, owned
`
`by Pep Boys Manny Moe & Jack of Delaware Inc. (“Pep Boys”). Ex. 2. Lyft has never leased
`
`space through Pep Boys at the Alleged Plano Express Drive Location. Lyft Decl. ¶ 7. Lyft’s
`
`
`
`6
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 11 of 21 PageID #: 451
`
`Express Drive program was available at the Alleged Plano Express Drive Location from
`
`December 18, 2017 to August 15, 2019. Id. ¶ 6.
`
`This Court’s previous decisions regarding the “of the defendant” prong of the patent venue
`
`statute confirm that Express Drive sites, including the Alleged Plano Express Drive Location (if
`
`it were open at the time the Complaint was filed), could not have served as a basis for venue in
`
`the instant case. See Andra Grp., 2020 WL 1465894, at *5 (refusing to find the location of an
`
`affiliate sufficient to establish venue over a defendant); AptusTech LLC v. Trimfoot Co., No. 4:19-
`
`CV-00133-ALM, 2020 WL 1190070, at *5 (E.D. Tex. Mar. 12, 2020) (refusing to find the
`
`location of a distributor sufficient to establish venue over a defendant); EMED Techs. Corp. v.
`
`Repro-Med Sys., Inc., No. 2:17-cv-728-WCB-RSP, 2018 WL 2544564 (E.D. Tex. June 4, 2018)
`
`(refusing to find the location of a distributor sufficient to establish venue over a defendant); Int’l
`
`Techs. & Sys. Corp., 2018 WL 4963129 (finding that the plaintiff failed to carry its burden to
`
`show that “Samsung Experience Stores” located inside Best Buy stores are places “of the
`
`defendant” under the patent venue statute). Just as the courts in Andra, AptusTech, EMED, and
`
`Int’l Techs. refused to impute the place of another on the defendant, even if the Alleged Plano
`
`Express Drive Location was not closed at the time this case was filed, it would not be a place “of
`
`Lyft” sufficient to find venue proper for Lyft.
`
`3. Pickup Locations Do Not Create a Sufficient Basis for Venue against Lyft.
`
`In its Complaint, AGIS suggests that vaguely described “dedicated pickup locations” may
`
`serve as a basis for venue against Lyft. Complaint ¶ 8. Federal Circuit case law confirms that
`
`this cannot be so. According to AGIS, “dedicated pickup locations are maintained by Lyft,” are
`
`“visible through the Lyft application, and are physically marked with Lyft branding.” Id. AGIS
`
`identifies a single purported example of a “dedicated pickup location” within this district—the
`
`Alleged Plano Express Drive Location. Id. As an initial matter, no “dedicated pickup location”
`
`
`
`7
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 12 of 21 PageID #: 452
`
`matching AGIS’s description existed at the Alleged Plano Express Drive Location on or after the
`
`date which AGIS filed its complaint. Lyft Decl. ¶ 9. To the extent AGIS uses the term “dedicated
`
`pickup location” to refer to any location at which a user of the Lyft app may be picked up, Lyft
`
`submits that such location cannot meet the venue requirements.
`
`First, separate from the “regular and established” requirement (discussed below), the
`
`Federal Circuit has been clear that a virtual space, e.g., a pickup location viewable through an
`
`application, is not a “place” under the patent venue statute. In re Cray, 871 F.3d at 1362 (“The
`
`statute thus cannot be read to refer merely to a virtual space or to electronic communications from
`
`one person to another.”). That the virtual space may correspond to a physical space is—on its
`
`own—insufficient to transform a location into a “place” capable of satisfying the venue
`
`requirements. See, e.g. Pers. Audio, 280 F. Supp. 3d at 934 (rejecting plaintiff’s argument that
`
`servers that facilitate internet or intranet operations are “places” under the patent venue statute);
`
`Int'l Techs., 2018 WL 4963129, at *8 (finding a defendant’s online advertising of a physical
`
`location in the district to be insufficient to establish venue over defendant). Indeed, the
`
`corresponding physical place must be a regular and established place of business of the defendant
`
`in order for that place to provide an adequate basis for venue. In re Cray, 871 F.3d at 1360. And,
`
`as cautioned by this Court in Pers. Audio, recognizing virtual spaces to be places of the defendant
`
`could have far reaching consequences:
`
`It might be true that part of Google’s business relies on these servers, but that does
`not amount to Google’s business being carried out from them. To conclude that
`Google’s business was being carried out by these servers would have far-reaching
`consequences that distort the scope of the statute; for example, every single AT&T
`tower would then possibly become a place of business for AT&T. Maybe even
`every handheld device sold by Verizon would become a place of business for
`Verizon because the end-user signed an agreement with Verizon regarding
`Verizon’s exclusive control of the device.
`
`Pers. Audio, 280 F. Supp. 3d at 934.
`
`
`
`8
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 13 of 21 PageID #: 453
`
`Even if Lyft had “dedicated pickup locations” in this district at the time AGIS filed its
`
`lawsuit, any such locations would not be regular and established places of business for Lyft. Users
`
`of Lyft’s app choose where they would like to be picked up for a ride. Lyft Decl. ¶ 10. Pickup
`
`locations may be street corners, restaurants, homes, or other locations in this District, none of
`
`which are owned, leased or otherwise controlled by Lyft. Id. As an example, a user may use
`
`Lyft’s platform to request a ride from his or her house (i.e., a place owned or leased by the user)
`
`to a local courthouse (i.e., a place owned or leased by the city, state, or federal government).
`
`Requesting a pickup from a particular location does not convert the location into a place “of Lyft.”
`
`Neither can it be said that such locations are “regular and established places of business”
`
`for Lyft. A business may be “regular” if it operates in a steady, uniform, orderly, and methodical
`
`manner. In re Cray, 871 F. 3d at 1362. “[S]poradic activity cannot create venue.” Id. (citing
`
`Phillips v. Baker, 121 F.2d 752, 756 (9th Cir. 1941) (“A ‘regular place of business’ is, obviously,
`
`a place where such business is carried on ‘regularly’ and not merely temporarily, or for some
`
`special work or particular transaction.”)). Additionally, an “established” business is one that is
`
`“settle[d] certainly, or fix[ed] permanently.” In re Cray, 871 F.3d at 1363.
`
`Rides provided by drivers using the Lyft app are, by their very nature, temporary and
`
`transactional. It follows, then, that a driver’s or rider’s presence at any given pickup location is
`
`also temporary and transactional. This sort of occasional and transitory interaction at a location
`
`fails to provide the regularity and permanency required of a “regular and established place of
`
`business.” See In re Cray, 871 F. 3d at 1362 (recognizing that the permanency element of a
`
`“regular and established place of business” is missing when the location at-issue is just a location
`
`for a particular transaction). Both the Supreme Court and the Federal Circuit have advised against
`
`such a broad reading of the statute. See Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 264
`
`
`
`9
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 14 of 21 PageID #: 454
`
`(1961) (“The requirement of venue is specific and unambiguous; it is not one of those vague
`
`principles which, in the interests of some overriding policy, is to be given a ‘liberal’
`
`construction.”); In re Cray, 871 F.3d at 1361 (“Courts should be mindful of [the history of the
`
`patent venue statute] in applying the statute and be careful not to conflate showings that may be
`
`sufficient for other purposes, e.g., personal jurisdiction or the general venue statute, with the
`
`necessary showing to establish proper venue in patent cases.”).
`
`Finally, AGIS’s incorrect contention that physical Lyft branding exists at a non-existent
`
`“dedicated pickup location” at a Pep Boys store in Plano is, without more, insufficient to establish
`
`venue over Lyft. As recognized by the Federal Circuit, marketing and advertisements are relevant
`
`to determining whether a place is “of the defendant,” but “only to the extent they indicate that the
`
`defendant itself holds out a place for its business,” which Lyft does not—the Alleged Plano
`
`Express Drive Location did not exist at the time the lawsuit was filed. Id. at 1363.
`
`4. Vehicles of Drivers Cannot Serve as a Basis for Venue Against Lyft
`
`Lastly, AGIS alleges that “vehicles of Lyft Drivers in this District” provide a sufficient
`
`basis to confer venue over Lyft. This basis, like all of AGIS’s other bases, also fails. Vehicles
`
`of drivers are not “regular and established places of business” for Lyft, nor are they places “of
`
`Lyft.”
`
`a. Driver’s Vehicles are Not Regular and Established Places of Business for
`Lyft.
`
`AGIS’s argument that vehicles may serve as a basis for venue against Lyft fails under the
`
`“regular and established place of business” prong of the venue analysis. An “established” place
`
`of business is one that is “not transient.” In re Cray at 1363. Such location must “for a meaningful
`
`time period be stable, established.” Id. “[I]f an employee can move his or her home out of the
`
`
`
`10
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 15 of 21 PageID #: 455
`
`district at his or her own instigation, without the approval of defendant, that would cut against the
`
`employee’s home being considered a place of business of the defendant.” Id.
`
`The primary purpose of a vehicle is to facilitate movement from a first point to a second
`
`point. See Ex. 3 (defining “vehicle” as “1: a means of carrying or transporting something” and
`
`“2) an agent of transmission”). A driver uses his or her vehicle to transport a rider from a pickup
`
`location to a destination. The vehicle then, when used by a driver on the Lyft app, is transient; it
`
`is not “stable” or “established” for any “meaningful time period.” In re Cray, 871 F.3d at 1363.
`
`Furthermore, a driver can—and frequently does—move his or her vehicle between
`
`judicial districts, both when a driver is transporting riders and when no riders are present. See
`
`Lyft Decl. ¶¶ 11–12 (explaining that Lyft does not restrict rides to particular geographic limits
`
`such as judicial districts); see also Ex. 4 (explaining that drivers may drive in different cities and
`
`regions); Ex. 52 (showing that riders may request rides using the Lyft app to destinations in
`
`Texarkana, Arkansas). Drivers do not need Lyft’s approval to cross geographic boundaries with
`
`his or her vehicle. Id. ¶ 12.
`
`In addition to not being an “established” place of business for Lyft, vehicles of drivers
`
`using the Lyft app are also not “regular” places of business for Lyft. As discussed above, a
`
`“regular” place of business is one that operates in a steady, uniform, orderly, and methodical
`
`manner. In re Cray, 871 F.3d at 1362. Drivers determine when and whether they will accept
`
`rides through Lyft’s app. See Lyft Decl. ¶ 14; see also Ex. 6. The freedom and flexibility of
`
`drivers using the Lyft app cuts against any finding that a driver’s vehicle may be a “regular” place
`
`of business for Lyft.
`
`
`2 AGIS cites to the webpage shown in Ex. 5 as support for its contention that Lyft maintains drivers “with their
`vehicles in this District at all times.” Complaint ¶ 11. At most, this webpage shows that users of the Lyft app may
`request rides to and from certain locations in Arkansas and further supports the fact that drivers regularly cross the
`boundaries of judicial districts.
`
`
`
`11
`
`
`
`

`

`Case 2:21-cv-00072-JRG Document 30 Filed 04/27/21 Page 16 of 21 PageID #: 456
`
`In view of the foregoing, a driver’s vehicle is neither a “regular” or “established” place of
`
`Lyft and thus such vehicle cannot serve as grounds for venue in this case.
`
`b. Vehicles of Drivers using the Lyft App are Not Places “Of Lyft”
`
`Furthermore, venue in this case cannot be based on the vehicles of drivers using the Lyft
`
`app because such vehicles are not places “of Lyft.” In re Cray, 871 F.3d at 1360. To accept rides
`
`via the Lyft app, a driver must supply his or her own vehicle (for example, owned, rented, or
`
`leased). Lyft Decl. ¶ 13. Each driver sets his or her own schedule and uses Lyft’s app as often
`
`or as little as the driver desires. See Id. ¶¶ 14 & 16; see also Ex. 6 (“[A]s a driver, you get to be
`
`your own boss, decide when and where you work and when you take breaks”). The question,
`
`then, is not whether a vehicle used to provide rides via the Lyft platform is “of the defendant”—
`
`it is unquestionably not—the question, rather, is whether a vehicle owned, leased, or rented by
`
`someone else is a place of Lyft for purposes of the patent venue statue.
`
`The Federal Circuit decision of In re Cray and this Court’s application of that decision in
`
`Uniloc USA, Inc. v. Nutanix, Inc., No. 2:17-cv-00174-JRG, 2017 U.S. Dist. LEXIS 229347 (E.D.
`
`Tex. Dec. 6, 2017) confirm that a driver’s vehicle cannot serve as a basis for venue against Lyft.
`
`The venue allegations in both In re Cray and Uniloc were premised on the intra-district residence
`
`of a defendant’s workers. Although the venue analysis differed in view of each set of facts, the
`
`courts reached the same conclusion—the residence of the defendant’s worker was not a place “of
`
`the defendant.” See In re Cray, 871 F.3d 1355; Uniloc, 2017 U.S. Dist. LEXIS 229347. Notably,