American Patents LLC v. Mediatek, Inc. et al

Western District of Texas, txwd-6:2018-cv-00339

Exhibit A [5-30-19 Redacted Tr. Excerpts]

Interested in this case?

Current View

Full Text

1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE WESTERN DISTRICT OF TEXAS 3 WACO DIVISION 4 AMERICAN PATENTS, LLC * * 5 * VS. * CIVIL ACTION NO. W-18-CV-339 6 * MEDIATEK, INC, ET AL * May 30, 2019 7 BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING 8 MOTION HEARING 9 APPEARANCES: 10 For the Plaintiff: Stafford Grigsby Helm Davis, Esq. The Stafford Davis Firm, PC 11 The People's Petroleum Building 102 North College Ave, 13th Floor 12 Tyler, TX 75702 13 Larry D. Thompson, Esq. Zachariah Harrington, Esq. 14 Antonelli, Harrington Thompson LLP 4306 Yoakum Blvd., Suite 450 15 Houston, TX 77006 16 For the Defendants: Eric H. Findlay, Esq. Findlay Craft, P.C. 17 102 N. College Ave, Suite 900 Tyler, TX 75702 18 Lai L. Yip, Esq. 19 Sheppard, Mullin, Richter & Hampton LLP 20 Four Embarcadero Ctr, 17th Floor San Francisco, CA 94111 21 Martin R. Bader, Esq. 22 Sheppard, Mullin, Richter & Hampton LLP 23 12275 El Camino Re al Suite 200 San Diego, CA 92130 24 25 2 1 Court Reporter: Kristie M. Davis United States District Court 2 PO Box 20994 Waco, Texas 76702-0994 3 4 5 Proceedings recorded by mechanical stenography, transcript 6 produced by computer-aided transcription. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 (May 30, 2019, 10:31 a.m.) 2 DEPUTY CLERK: Pending motion hearing in Civil Action 3 W-18-CV-339, styled American Patents, LLC vs. Mediatek, 4 Incorporated, et al. 5 THE COURT: Good morning. If counsel would do two things. 6 If you would introduce everyone who is in attendance, and if 7 you also would be kind enough as to tell me who the folks are 8 that will primarily be speaking as well. 9 MR. DAVIS: Good morning, Your Honor. Stafford Davis on 10 behalf of plaintiff American Patents, LLC. With me are Zack 11 Harrington and Larry Thompson, and they will both be speaking 12 on behalf of plaintiff. 13 THE COURT: Very good. 14 MR. FINDLAY: Good morning, Your Honor. Eric Findlay, 15 along with Martin Bader and Lai Yip on behalf of Lenovo 16 defendants, and Mr. Bader will be handling customer suit sever 17 and stay motion, and Ms. Yip will be handling the 18 jurisdictional issues. 19 THE COURT: Very good. 20 MR. FINDLAY: Thank you. 21 THE COURT: And since these are the defendants' motions, 22 I'll hear from the defendant first. 23 And you're welcome to come up. 24 Just so everyone knows, I have read -- you're welcome to 25 repeat anything or say anything you think is important, but I 21 1 plaintiff has cited that would suggest that it's a material 2 consideration in the agency context. And in any event, 3 Mr. Cranor saying 4 does not show that any consumer is confused and in 5 fact doesn't even show that Mr. Cranor is confused. And, most 6 importantly, it doesn't show pervasive control by LGL over 7 Lenovo U.S., which is the standard. 8 Next, plaintiff relies on the annual report again and its 9 references to we, our and us. Plaintiff's argument is that 10 because the Lenovo entities refer to themselves collectively 11 that they must be agents of each other. That appears to be the 12 argument that they are making, but, again, in the Fellowship 13 case the Court found that there is no jurisdiction on the basis 14 that Alibaba Group holds out its U.S. subsidiary as being part 15 of a tightly integrated Alibaba group. 16 So that is really the sum total of plaintiff's rebuttal 17 evidence. And what we see here is that even under a prima 18 facie burden of proof, even in the light most favorable to 19 plaintiff, plaintiff is unable to establish jurisdiction. 20 Every single piece of plaintiff's evidence is either immaterial 21 as a matter of law, extremely weak, irrelevant or just don't 22 make any sense. 23 Turning now to the jurisdiction under Rule 4(k)(2). So 24 this is plaintiff's catch-all jurisdictional theory that is 25 completely premised on the success of the other two theories. 22 1 Rule 4(k)(2) permits the assertion of the exercise of 2 jurisdiction where the minimum contacts of the foreign 3 defendant are sufficient with the United States as a whole even 4 if not with respect to any particular forum. But, as we 5 showed, plaintiff is unable to show minimum contacts under 6 either stream of commerce theory or an agency theory in any 7 forum anywhere in the U.S. and, therefore, it cannot be that 8 there are minimum contacts with the U.S. as a whole. 9 And, finally, with respect to whether or not the exercise 10 of jurisdiction is unreasonable or unfair, the Federal Circuit 11 has said that showing that the exercise of jurisdiction is 12 unreasonable or unfair only shifts to the defendant if the 13 plaintiff shows first that there are minimum contacts by the 14 foreign defendant in the forum. And here, because the 15 plaintiff has never made the showing, the burden never shifts 16 to the defendants. If the burden were to shift to defendants, 17 certainly the exercise of jurisdiction would be unreasonable 18 and unfair given that the foreign defendants are not operating 19 in the U.S., operate thousands of miles away, and there is 20 another entity, Lenovo U.S., which would be the correct 21 defendant here. 22 And if the Lenovo defendants were dismissed and our motion 23 were to be granted, it is very important to remember that the 24 plaintiff would not be without a remedy. The plaintiff could 25 still name Lenovo U.S. In many of the cases in which motions 23 1 to dismiss are granted, there are not even other entities for 2 the plaintiff to name. The plaintiff is left with no one to 3 sue, but here that's not true. The plaintiff has a remedy. 4 Your Honor, if there's any questions that you have that I 5 can answer, I would be happy to answer them. 6 THE COURT: No. I think that was a very good 7 presentation. 8 MS. YIP: Thank you, Your Honor. 9 THE COURT: Very good. Thank you, ma'am. And I'll give 10 you a chance after plaintiff's counsel is done to come back up. 11 MS. YIP: Thank you. 12 MR. THOMPSON: Your Honor, may I approach with copies of 13 my presentation? 14 THE COURT: Of course. 15 MR. THOMPSON: Again, Larry Thompson, Your Honor, for 16 plaintiff. 17 THE COURT: Yes, sir. 18 MR. THOMPSON: There's one point that I want to address, 19 you know, right off the bat before I get into our presentation. 20 Lenovo's counsel made quite clear their opinion that Lenovo 21 U.S. is the only proper party in this case, but Lenovo U.S. 22 doesn't make the accused products. They don't ship the accused 23 products to the United States. And Lenovo doesn't want to tell 24 us or the Court who actually does that. And that's important 25 here because what we do know and what's beyond reasonable 43 1 opportunity to speak again and for your question. 2 I had anticipated that they would raise the jurisdiction 3 issue, the additional jurisdictional discovery issue and so I 4 prepared some additional demonstratives for your reference on 5 this point if you would not mind me approaching and providing 6 it. 7 THE COURT: Very impressive. 8 (Laughter.) 9 MS. YIP: So there's actually a standard for how we 10 evaluate whether jurisdictional discovery is appropriate. 11 Plaintiff's counsel made it seem like as if it's really a low 12 bar to obtain additional jurisdictional discovery, but that is 13 false. 14 In our earlier briefing we cited a case from the Western 15 District of Texas that articulates what the standard is, and 16 that's on Page 3 of the second slide presentation, and it says: 17 As the party opposing dismissal and requesting discovery, the 18 plaintiffs bear the burden of demonstrating the necessity of 19 discovery. A plaintiff seeking jurisdictional discovery is 20 expected to identify with particularity the discovery sought, 21 explain what information it expects to obtain, and explain how 22 that information would support the assertion of personal 23 jurisdiction. 24 Another case on Page 4, the Firefighters case, is also 25 instructive. We cited this in our briefing as well. 44 1 Jurisdictional discovery must be denied where plaintiffs have 2 failed to identify what they believe discovery would reveal or 3 how these newly discovered facts would establish personal 4 jurisdiction over named defendant. 5 And I think that that's really key, that the 6 jurisdiction -- the jurisdictional discovery is regarding the 7 named defendant. The jurisdictional discovery that the 8 plaintiff is seeking regarding who manufactures the products if 9 it's not the foreign Lenovo defendants that are currently named 10 is not jurisdictional discovery that allows us to ascertain 11 jurisdiction over the currently named defendants. And if you 12 look at the way that jurisdictional discovery is ordered in the 13 cases, all the cases that I've seen order jurisdictional 14 discovery about the named defendants. And there are cases out 15 there that say that jurisdictional discovery should not be used 16 as a means for a fishing expedition. 17 THE COURT: No. No. Let me assure you that's what I'm -- 18 I would be limiting the discovery to the named defendants. I 19 get that. And also my general sense from having sat on the 20 plaintiff's side occasionally is I don't think the plaintiffs 21 have really any interest. It's kind of a pyrrhic victory for 22 me to deny their -- the motion to dismiss here, go all the way 23 through trial and have them find out that these two entities 24 don't infringe or don't do what they say. So my sense is, 25 while you've done a very good job in protecting Lenovo's 45 1 interest, and I understand why you would oppose wanting to 2 allow this discovery to take place, I could even imagine the 3 phone call with your client if you had to tell them I permitted 4 this to go forward. I had some of those phone calls too, but 5 it seems to me that the one area where your interest and the 6 plaintiff's interest is aligned 100 percent here is in making 7 sure that Lenovo Group and, I apologize, the other Lenovo 8 entity are the appropriate entities. And I don't see the 9 plaintiff's counsel wanting to spend any more money 10 accomplishing that than the minimal that it would take. You 11 all don't want to give them any more discovery than the minimal 12 it would take, and what my hope would be is that you all could, 13 on a fairly rapid basis, come to an agreement on what discovery 14 the plaintiff feels it would need to take from the named 15 defendants only, not a fishing expedition, but it seems to me 16 the plaintiffs have a bigger interest really than you all do in 17 making sure that these are the right entities and not just 18 staying here. 19 And so I think what I'm going to do is I'm going to order 20 that you all get together and have the -- let the plaintiffs 21 tell you what discovery they think would be necessary that is 22 limited to establishing that the two Lenovo entities that are 23 in this lawsuit infringe, and what I mean -- not that they 24 practice it, but I'm saying that they either make, sell or 25 whatever, and if you all can't come up with -- if you all can't