Case 6:22-cv-00031-ADA Document 89 Filed 01/13/23 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC. (D/B/A FLYP),
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`Plaintiff,
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`Civil Action No. 6:22-cv-31-ADA
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`vs.
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`GOOGLE LLC,
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`JURY TRIAL DEMANDED
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`Defendant.
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`PLAINTIFF FLYPSI, INC.’S RESPONSE TO DEFENDANT GOOGLE LLC’S
`OPPOSED MOTION TO STAY PROCEEDINGS PENDING MANDAMUS REVIEW
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`Google fatally applies the wrong legal standard in its Motion, thus waiving three of the
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`four necessary factors to stay proceedings. This alone should be dispositive for the Court. In
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`addition, the only factor Google did not waive favors Flyp.
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`When stripped to its core, Google complains that, while the Federal Circuit takes an
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`unknown amount of time deciding its mandamus petition, it must abide by this Court’s orders and
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`conduct run-of-the-mill litigation activities. Google cannot expect this Court to consider its own
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`standing orders and procedures an irreparable hardship to Google, who is no stranger to litigating
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`in this forum. This Court should therefore deny Google’s Motion and allow the parties to continue
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`toward their goal of a just and speedy resolution.
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`Case 6:22-cv-00031-ADA Document 89 Filed 01/13/23 Page 2 of 10
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`I.
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`BACKGROUND
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`Plaintiff Flypsi, Inc. (“Flyp”) filed the above-captioned case over a year ago, in January
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`2022. Dkt. 1. In July 2022, Defendant Google LLC (“Google”) filed its Motion to Transfer. Dkt.
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`42. The Court denied Google’s transfer motion. Dkt. 74. After denying the transfer motion, the
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`Court conducted the Markman hearing. Dkt. 75. One month after the Court denied transfer, Google
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`petitioned the Federal Circuit to reverse the transfer denial. In re Google LLC, No. 23-112 (Fed.
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`Cir. Dec. 22, 2022). Two weeks later, Google filed its Motion to Stay (“Motion”) pending the
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`Federal Circuit’s review. Dkt. 86.
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`II.
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`LEGAL STANDARD
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`District courts possess inherent power to manage their own dockets, including
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`discretionary power to stay proceedings. Clinton v. Jones, 520 U.S. 681, 706 (1997). When
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`exercising this discretionary power, courts recognize that the standard for staying proceedings is
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`high, and “[s]tays are not a matter of right.” WSOU Invs. LLC v. ZTE Corp., No. 6:20-CV-00487-
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`ADA, 2022 WL 479131, at *1 (W.D. Tex. Feb. 16, 2022) (citing Nken v. Holder, 556 U.S 418,
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`427 (2009)). This is because a stay “is an intrusion into the ordinary processes of administration
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`and judicial review.” Id. (quoting Uniloc 2017 LLC v. Samsung Elecs. Am., Inc., No. 2:19-cv-
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`00259-JRG-RSP, 2020 WL 1433960, at *2–3 (E.D. Tex. Mar. 24, 2020)).
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`For that reason, when a party moves for stay, the party has the burden to “make out a clear
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`case of hardship or inequity.” Id. (quoting Neodron Ltd. v. Dell Techs., Inc., No. 1:19-cv-819, 2019
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`WL 9633629, at *1 (W.D. Tex. Dec. 16, 2019)); Uniloc, 2020 WL 1433960, at *2 (“The party
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`seeking a stay bears the burden of showing that such a course is appropriate.”). And because a writ
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`of mandamus is such an extraordinary remedy, “courts normally ‘will not delay the normal
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`litigation schedule to accommodate one party seeking this type of extraordinary remedy.’” WSOU,
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`2022 WL 479131, at *1 (citation omitted).
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`Case 6:22-cv-00031-ADA Document 89 Filed 01/13/23 Page 3 of 10
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`When deciding whether a movant has met the high burden of meriting a stay of
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`proceedings, courts consider four factors: “(1) whether the movant has made a showing of
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`likelihood of success on the merits; (2) whether the movant will suffer irreparable injury if the stay
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`is not granted; (3) whether granting the stay would substantially harm the other parties; and (4)
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`whether the stay would serve the public interest.” Id. (citing Nken, 556 U.S. at 434). And of these
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`factors, “the first two factors are the most critical.” Uniloc, 2020 WL 1433960, at *2.
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`Google applied the wrong legal standard in its Motion when it applied the three-factor test
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`from Kirsch Research and Development LLC v. IKO Industries, No. 6:20-cv-00317-ADA, 2021
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`WL 4555610 (W.D. Tex. Oct. 5, 2021). Google cited the three-factor test in Kirsch Research as
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`what courts use to “decid[e] whether to stay litigation.” Mot. at 2. However, Google ignores that
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`in Kirsch Research, the Court recognized those factors are specifically for “determining whether
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`to grant a stay pending inter partes review of a patent in suit.” Kirsch Rsch., 2021 WL 4555610,
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`at *2 (emphasis added). But when deciding a motion to stay pending mandamus review of a
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`transfer, this Court used the four-factor test from United States v. McKenzie, 697 F.2d 1225, 1226
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`(5th Cir. 1983), and Nken, 556 U.S. at 434. WSOU, 2022 WL 479131, at *1. So, the Court should
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`apply this four-factor test, rather than the test used to determine whether to stay proceedings
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`pending inter partes review.
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`III. ARGUMENT
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`Google has not even remotely broached the threshold of meeting the four-factor test to
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`merit a stay in proceedings. To begin with, Google has waived three of the four factors by not
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`addressing them in its opening Motion. LBT II, LLC v. Uber Techs., Inc., No. 6:21-cv-01210-ADA,
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`2022 WL 2329321, at *6 (W.D. Tex. June 28, 2022) (“Because these arguments were plainly
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`absent in [Defendant’s] original Motion, the Court finds that they are waived.”). Google’s waiver
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`includes the first two factors, the most critical factors for the Court’s consideration. Uniloc, 2020
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`WL 1433960, at *2. The Court can and should end its analysis on this point.
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`Even if the Court considers the merits of each factor, each factor weighs heavily against
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`the requested stay. The only factor Google addresses (substantial harm to Flyp) weighs heavily in
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`Flyp’s favor. All other factors likewise weigh heavily against a stay. As a result, the Court should
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`deny Google’s Motion.
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`A.
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`Google Has Not Shown a Likelihood of Success on the Merits.
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`Google waived this factor by not addressing it in its Motion. LBT II, 2022 WL 2329321, at
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`*6. The Court can thus find that this factor weighs heavily against a stay and move on to the next
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`factor with no more analysis.
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`Even if the Court decides to analyze this factor, Google makes no attempt to demonstrate
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`to the Court any possibility of success on the merits. The Motion presented to the Court does not
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`show how the pending petition before the Federal Circuit shows “a clear and indisputable right to
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`the writ,” which “requires more than a showing that the court misinterpreted the law, misapplied
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`it to the facts, or otherwise engaged in an abuse of discretion.” In re Planned Parenthood Fed’n of
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`Am., Inc., 52 F.4th 625, 628 (5th Cir. 2022) (quotations omitted). Nor has Google shown any new
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`reason why this Court abused its discretion in making its decision.
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`The Court already considered the issue of venue at length, and it scrutinized all the facts
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`before it in a 30-page order issued in November 2022. Dkt. 74. Google has presented no facts or
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`circumstances to the Court as to why it should change its mind now. Thus, Google has not met its
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`burden of showing a likelihood of success on the merits.
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`B.
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`Google Will Not Suffer Irreparable Injury if the Stay Is Not Granted.
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`Again, Google waived this factor by not addressing it in its Motion. LBT II, 2022 WL
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`2329321, at *6. Indeed, the words “irreparable injury” do not appear anywhere in Google’s
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`Motion. The Court can find that this factor weighs heavily against a stay without further analysis.
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`If the Court decides to analyze this factor, it similarly weighs heavily against a stay.
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`Expecting a party to comply with the local rules of the court currently governing proceedings is
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`not irreparable injury. Google asserts extensive discovery and “differences in the respective
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`districts’ contention requirements” as a potential burden. Mot. at 4. But Google does not explain
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`why complying with the Court’s standing orders causes irreparable injury or an undue burden
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`when this Court is governing proceedings.
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`And as for burdens of discovery that Google claims will “consume party resources,” Mot.
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`at 4, this Court has already decided that the typical costs of litigation activities “associated with
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`discovery and defending a suit do not warrant a stay.” WSOU, 2022 WL 479131, at *2. Multiple
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`courts beyond this one agree that discovery deadlines and procedures do not merit a stay of
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`proceedings. M.D. v. Perry, No. C-11-84, 2011 WL 7047039, at *2 (S.D. Tex. July 11, 2011)
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`(“The prospect of burdensome or expensive discovery alone is not sufficient to demonstrate
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`‘irreparable injury.’”); Kaneka Corp. v. JBS Hair, Inc., No. 3:10-CV-1430, 2011 WL 13167931,
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`at *1 (N.D. Tex. Mar. 30, 2011) (“Ordinary discovery deadlines, without more, does not give rise
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`to an undue burden.”).
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`Google also seeks to compare this case with Bell Semiconductor, LLC v. NXP
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`Semiconductors, N.V., No. 1:20-CV-611-LY, 2022 WL 1447948 (W.D. Tex. Feb. 7, 2022), but it
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`fails in two important ways. Google cites Bell as an example in which a court granted a stay when
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`“a substantial amount of discovery” remained. Mot. at 4. First, the stay at issue in Bell was a stay
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`pending inter partes review. Bell, 2022 WL 1447948, at *2. Second, the court in Bell found the
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`specific circumstances favored a stay because the court had “not yet rendered a scheduling order
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`or set a trial date.” Id. at *4. As discussed above, this case involves staying pending an
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`Case 6:22-cv-00031-ADA Document 89 Filed 01/13/23 Page 6 of 10
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`extraordinary writ to review a transfer denial, not inter partes review. And, unlike in Bell, this
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`Court has already issued a scheduling order and set a trial date for this year—beginning November
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`15, 2023. Dkt. 73.
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`In short, Google has waived the two most important factors that decide whether to stay
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`proceedings. And even considering those factors on their merits, they still do not favor Google.
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`C.
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`Granting a Stay Would Substantially Harm Flyp.
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`This is the only factor addressed in the Motion, but it favors Flyp. Flyp would
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`unquestionably be harmed if the Court ordered a stay in proceedings. This case is in an advanced
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`stage as the parties conduct discovery and prepare for trial. A stay pending a decision with an
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`unknown time frame would unnecessarily delay Flyp’s right to timely enforce its patents.
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`Contrary to Google’s characterization, the advanced stage of this case weighs against
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`granting a stay. While Google asserts that “the fact that the Court has set a trial date favors a stay,”
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`Mot. at 4, the setting of the trial date, along with other facts, weighs against a stay. This case was
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`filed over one year ago. Dkt. 1. The Court already conducted the Markman hearing. Dkt. 75. Both
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`parties have served interrogatories and requests for production, and they are conferring and
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`negotiating on discovery issues as we speak. In fact, Google filed this Motion right after the parties
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`negotiated to extend the deadline for Final Infringement Contentions because of Google’s lack of
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`production through the present date.1 Flyp has sent code reviewers to California to review source
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`code. All of these activities point to Flyp’s strong desire to reach trial and come to a speedy
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`resolution.
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`Further, Google’s categorical appraisal that the stay will be “relatively short” amounts to
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`1 Flyp does not intend to bring a discovery issue to the Court’s attention here. Flyp raises this point
`to merely to show that the parties are actively conducting discovery and conferring on deficiencies.
`A stay would halt all such activity and discussions.
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`no more than mere attorney supposition. Google provides no substantiation that the Federal Circuit
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`will address the petition anytime soon, nor does Google explain how it defines “relatively short.”
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`See Mot. at 1.
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`Granting a stay amid an uncertain resolution of a mandamus petition prevents Flyp from
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`exercising its right to timely enforce its patents. “A stay will destroy the current case schedule,
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`thereby delaying discovery, and [Flyp’s] right to timely enforce its patents.” WSOU, 2022 WL
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`479131, at *1. Google tries to counter this right in two ways: (1) criticizing Flyp for having a “lack
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`of urgency” since Flyp didn’t file a preliminary injunction, Mot. at 3, and (2) arguing that Flyp
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`suffers no harm since it only seeks money damages. Both these points fail. As courts have noted,
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`“the failure to move for preliminary injunction does not erase the fact that [the plaintiff] would
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`likely suffer tangible harm from a stay.” Nippon Steel & Sumito Metal Corp. v. POSCO, No. 12-
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`2429 (DMC), 2013 WL 1867042, at *6 n.6 (D.N.J. May 2, 2013). And the type of damages sought
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`by a patentee does not change its right to timely enforcement. Intell. Ventures II LLC v. FedEx
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`Corp., 2:16-cv-00980-JRG, 2017 WL 6559172, at *4 (E.D. Tex. Dec. 22, 2017) (“[A] plaintiff has
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`the right to timely enforce its patent rights, . . . even if the plaintiff could be made whole by money
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`damages.”).
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`D.
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`A Stay Does Not Serve the Public Interest.
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`Again, Google waived this factor by not addressing it in its Motion and it cannot raise
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`public interest arguments for the first time in reply. LBT II, 2022 WL 2329321, at *6.
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`Even so, the public interest still favors Flyp. “[I]t is bedrock that there is a public interest
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`in the just and speedy resolution of disputes.” Uniloc, 2020 WL 1433960, at *4 (citing Fed. R.
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`Civ. P. 1 (stating the Rules should be used to “secure the just, speedy, and inexpensive
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`determination of every action and proceeding”)).
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`While Google passingly refers to the importance of judicial economy, its argument on why
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`Case 6:22-cv-00031-ADA Document 89 Filed 01/13/23 Page 8 of 10
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`judicial economy favors stay here is unavailing. The only argument for judicial economy Google
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`presents is having the trial court ultimately over the case ruling on discovery issues as well. Mot.
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`at 4. But discovery work and decisions are easily translatable and do not rise to the level that merits
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`a stay. See Intell. Ventures, 2017 WL 6559172, at *4. And it benefits the public even more to have
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`this Court preside over this case since it has the most familiarity with the issues. See Kraft Foods
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`Grp. Brands LLC v. TC Heartland, LLC, 232 F. Supp. 3d 628, 631 (D. Del. 2017) (“I have presided
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`over the case since its inception. The directive of [Fed. R. Civ. P.] 1 . . . is far better served by me
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`deciding the ripe motions rather than leaving numerous loose threads for (potentially) another
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`judge in another District to have to untangle.”).
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`IV. CONCLUSION
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`Google inescapably applies the wrong legal standard in its Motion, therefore waiving three
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`of the four factors without the ability to remedy. And the factor Google did not waive still weighs
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`heavily in favor of Flyp. On top of that, Google has the burden to show clear inequity or hardship
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`if not granted a stay. There is no question that Google has not come close to this standard. The
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`Court should deny Google’s Motion.
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`Case 6:22-cv-00031-ADA Document 89 Filed 01/13/23 Page 9 of 10
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`DATED: January 13, 2023
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`Respectfully submitted,
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`/s/ Michael A. Bittner
`Thomas M. Melsheimer
`Texas Bar No. 13922550
`tmelsheimer@winston.com
`M. Brett Johnson
`Texas Bar No. 00790975
`mbjohnson@winston.com
`Michael A. Bittner
`Texas Bar No. 24064905
`mbittner@winston.com
`Steven R. Laxton
`Texas Bar No. 24120639
`slaxton@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
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`Matthew R. McCullough
`California Bar No. 301330
`mrmccullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`Telephone: (650) 858-6500
`
`William M. Logan
`Texas Bar No. 24106214
`wlogan@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
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`ATTORNEYS FOR PLAINTIFF
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`Case 6:22-cv-00031-ADA Document 89 Filed 01/13/23 Page 10 of 10
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`/s/ Michael A. Bittner
`Michael A. Bittner
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was filed electronically in
`compliance with Local Rule CV-5. This document was therefore served on all counsel who are
`deemed to have consented to electronic service. Administrative Policies and Procedures for
`Electronic Filing in Civil and Criminal Cases, Western District of Texas, Section 14.
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