Case 6:22-cv-00031-ADA Document 86 Filed 01/06/23 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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` CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT GOOGLE LLC’S OPPOSED MOTION TO STAY
`PROCEEDINGS PENDING MANDAMUS REVIEW
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`This litigation is currently proceeding in two places: this Court and the Federal Circuit.
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`After this Court denied Defendant Google LLC’s (“Google”) motion to transfer (ECF No. 74),
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`Google filed its Petition for Writ of Mandamus to the Court of Appeals for the Federal Circuit
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`(“the Mandamus Petition”). In re Google LLC, No. 23-112 (Fed. Cir. Dec. 22, 2022). Until that
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`process concludes, Google and Plaintiff Flypsi, Inc. (“Flyp”) will litigate in two separate forums.
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`A stay pending resolution of the Mandamus Petition will respect this Court’s judicial resources by
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`eliminating that inefficiency and will conserve both parties’ resources. Flyp also will not be
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`prejudiced by the relatively short stay necessary to allow resolution of the Mandamus Petition.
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`And this is an appropriate stage of the case for a stay: fact discovery is underway, which will likely
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`lead to discovery disputes, and the February 3 deadline for Final Infringement and Invalidity
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`Contentions is fast approaching. ECF No. 85. Google therefore respectfully requests that the Court
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`stay all proceedings pending the resolution of the Mandamus Petition. Flyp opposes the requested
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`stay.
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`1
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`Case 6:22-cv-00031-ADA Document 86 Filed 01/06/23 Page 2 of 7
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`I.
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`BACKGROUND
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`Flyp filed this case in January 2022. ECF No. 1. Google moved to transfer to the Northern
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`District of California in July of that year. ECF No. 42. This Court denied transfer approximately
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`one and a half months ago on November 21, concluding that “even with [the compulsory process
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`and local interest] factors favoring transfer, the Court finds that Google has failed to meet its
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`burden of showing that the NDCA is a clearly more convenient forum.” ECF No. 74 at 29. Google
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`filed a Mandamus Petition requesting that the Federal Circuit vacate the transfer order on
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`December 22, 2022. In re Google LLC, No. 23-112 (Fed. Cir. Dec. 22, 2022). In the meantime,
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`there is much substantive work being done and to be done, including the majority of fact discovery,
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`expert discovery, and preparation of Final Infringement and Invalidity Contentions.
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`II.
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`LEGAL STANDARD
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`The “power to stay proceedings” is part of a district court’s “inherent power ‘to control the
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`disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
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`for litigants.’” United States v. Colomb, 419 F.3d 292, 299 (5th Cir. 2005) (citation omitted). It is
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`well-established that “[i]f the district court or the court of appeals finds it appropriate to stay
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`proceedings while a petition for mandamus relief is pending, such a stay may be granted in the
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`court's discretion.” Woodson v. Surgitek, Inc., 57 F.3d 1406, 1416 (5th Cir. 1995).
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`In deciding whether to stay litigation, courts consider: “(1) whether the stay will unduly
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`prejudice the nonmoving party, (2) whether the proceedings before the court have reached an
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`advanced stage, including whether discovery is complete and a trial date has been set, and (3)
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`whether the stay will likely result in simplifying the case before the court.” Kirsch Rsch. & Dev.,
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`LLC v. IKO Indus., Inc., No. 6:20-cv-00317-ADA, 2021 WL 4555610, at *2 (W.D. Tex. Oct. 4,
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`2021) (citation omitted). It may be appropriate to grant a stay when the petition for mandamus will
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`determine whether the case will be transferred to a different court. See Motion Offense, LLC, v.
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`Case 6:22-cv-00031-ADA Document 86 Filed 01/06/23 Page 3 of 7
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`Google LLC, No. 6:21-cv-00514-ADA, ECF No. 77 (W.D. Tex. Sept. 15, 2022) (ordering a stay
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`after transfer was granted while plaintiff’s petition for mandamus regarding transfer under 28
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`U.S.C. § 1404(a) had yet to be filed).
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`III. A STAY PENDING RESOLUTION OF THE MANDAMUS PETITION IS
`WARRANTED
`A.
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`A Stay Would Not Unduly Prejudice Flyp or Present a Clear Tactical
`Disadvantage to Flyp
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`In this case, the Mandamus Petition will be fully briefed on January 9. A relatively short
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`stay to fully resolve the issue regarding the correct venue will not prejudice, let alone unduly
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`prejudice, Flyp. Nor would it present Flyp with any tactical disadvantage. See Nobots LLC v.
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`Google LLC, No. 1-22-cv-00585-RP, ECF No. 53 (W.D. Tex July 13, 2022) (“[A] short stay of
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`the proceedings will not unduly prejudice [Plaintiff].”). Flyp itself has demonstrated a lack of
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`urgency in pursuing a remedy from Google. For example, Flyp delayed nearly seven months to
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`bring this action against Google after asserting four of the same five patents against another party
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`in another suit, Flypsi, Inc. v. Dialpad, Inc., No. 6:21-cv-00642-ADA, ECF No. 1 (W.D. Tex. June
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`21, 2021). A stay will not exclude any legal remedy currently available to Flyp. In the event that
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`Flyp prevails in its claims of infringement, Flyp will be fully compensated by monetary damages.
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`“[M]ere delay in collecting those damages does not constitute undue prejudice.” Crossroads Sys.,
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`Inc. v. Dot Hill Sys. Corp., No. 13-cv-01025-SS, 2015 WL 3773014, at *2 (W.D. Tex. June 16,
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`2015). Further favoring a stay is the fact that Flyp has not asked this Court for a preliminary
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`injunction. See, e.g., QSPX Devs. 5 Pty Ltd. v. Cinea Corp., No. 2:07-cv-118-CE, 2009 WL
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`8590964, at *2 (E.D. Tex. Aug. 27, 2009) (granting a stay where the plaintiff had not sought a
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`preliminary injunction).
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`Case 6:22-cv-00031-ADA Document 86 Filed 01/06/23 Page 4 of 7
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`B.
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`A Stay Simplifies the Issues and Trial of the Case
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`Permitting the Federal Circuit to settle the issue of venue before proceeding would simplify
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`the issues in this case. The Court’s local rules differ in important ways from those of the Northern
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`District of California. For example, there are material differences in the respective districts’
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`contention requirements, including the timing of contentions. See NDCA Patent Local Rules 3-1
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`and 3-3, at *4–6 (Exhibit 1); See also Standing Order Governing Proceedings (OGP) 4.2 – Patent
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`Cases at 2–3, 12. Specifically, the OGP in this court provides for Final Infringement and Invalidity
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`Contentions; the Northern District of California Patent Local Rules contain no such requirement.
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`The parties should not engage in potentially unnecessary activity while the Federal Circuit
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`examines the proper venue. A stay would avoid this inefficiency.
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`C.
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`Discovery Is Accelerating and the Contention Deadline Is Approaching
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`This case is leaving the beginning stages of fact discovery, and that process will soon
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`accelerate: Defendant and Plaintiff have recently provided responses to the other’s initial
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`interrogatories and requests in the past month. The February 3 Final Infringement and Invalidity
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`Contentions deadline is approaching, ECF No. 85, and the March 8 deadline to amend pleadings
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`is following close behind, ECF No. 73. In the coming months the parties will conduct extensive
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`fact and, subsequently, expert discovery, including depositions, all of which will consume
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`considerable party resources. Bell Semiconductor, LLC v. NXP Semiconductors, N.V., No. 1-20-
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`cv-00611-LY, 2022 WL 1447948, at *2 (W.D. Tex. Feb. 7, 2022) (granting a stay when “[t]he
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`parties have yet to complete a substantial amount of discovery—including depositions”). That
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`discovery should be conducted under the local rules of the court that will preside over the trial,
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`and the trial court should resolve any arising discovery disputes. And the fact that the Court has
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`set a trial date favors a stay; as trial approaches, the circumstances will increasingly favor staying
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`the case to avoid mooting the issues presented in the Mandamus Petition. See In re Volkswagen of
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`Case 6:22-cv-00031-ADA Document 86 Filed 01/06/23 Page 5 of 7
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`America, Inc., No. 07-40058 (5th Cir. 2008) (ordering a stay while a petition for mandamus to
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`transfer under 28 U.S.C. § 1404(a) was pending).
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`IV. CONCLUSION
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`The Mandamus Petition, together with the current stage and upcoming deadlines of this
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`case, warrant a stay. The parties and Court should not spend valuable time and resources
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`conducting extensive discovery, resolving disputes, or otherwise litigating a case that may be soon
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`transferred. Defendant therefore requests that the Court stay all proceedings pending the
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`Mandamus Petition’s resolution.
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`Case 6:22-cv-00031-ADA Document 86 Filed 01/06/23 Page 6 of 7
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`DATED: January 6, 2023
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`Respectfully Submitted,
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`/s/ Robert W. Unikel
`Robert W. Unikel (Pro Hac Vice)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro Hac Vice)
`johncotiguala@paulhastings.com
`Daniel J. Blake (Pro Hac Vice)
`danielblake@paulhastings.com
`Grayson S. Cornwell (Pro Hac Vice)
`graysoncornwell@paulhastings.com
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Telephone: (312) 499-6000
`Facsimile: (312) 499-6100
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`Robert R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Elizabeth Brann (Pro Hac Vice)
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
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`Joshua Yin (Pro Hac Vice)
`joshuayin@paulhastings.com
`David M. Fox (Pro Hac Vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
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`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
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`6
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`Case 6:22-cv-00031-ADA Document 86 Filed 01/06/23 Page 7 of 7
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`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
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`Attorneys for Defendant Google LLC
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`CERTIFICATE OF CONFERENCE
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`I hereby certify that on January 5, 2023, Defendant’s counsel sought Plaintiff’s position on
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`this request for a stay pending resolution of Defendant’s mandamus petition. On January 5, 2023,
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`Plaintiff confirmed it opposes Google’s request.
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`/s/ Robert W. Unikel
`Robert W. Unikel
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 6th day of January, 2023, a true and correct copy of the
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`foregoing document was filed electronically with the Clerk of Court using the CM/ECF system.
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`As of this date, all counsel of record have consented to electronic service and are being served
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`with a copy of this document through the Court’s CM/ECF system.
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`/s/ Robert W. Unikel
`Robert W. Unikel
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`7
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