GOOGLE’S OPP. TO MOT. FOR DISCOVERY Case No. 6:20-cv-00128-ADA-JCM 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

CYWEE GROUP LTD., 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

v. 

GOOGLE LLC, 

Defendant. 

Case No. 6:20-cv-00128-ADA-JCM 

DEFENDANT GOOGLE LLC’S OPPOSITION TO

PLAINTIFF’S MOTION FOR JURISDICTIONAL DISCOVERY 

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I. INTRODUCTION 

CyWee’s motion for broad jurisdictional discovery and a 60-day stay of further briefing on 

Google LLC’s motion to dismiss is meritless. CyWee fails to explain why the discovery it seeks—

i.e., unspecified interrogatories, requests for production, third-party subpoenas, and depositions of 

Google and third-party witnesses—is at all necessary to resolve or even relevant to the 

jurisdictional (or other) issues raised in Google’s motion to dismiss, let alone tailored and 

proportional. It is not. As Google’s motion makes clear, its arguments for dismissal (including 

those based on jurisdictional defects) are based entirely on CyWee’s own allegations and narrow 

theory of fraud in its complaint: that Google failed to disclose two alleged parties-in-interest (LG 

and Samsung) in its petitions for inter partes review (“IPR”) of two CyWee patents filed with the 

Patent Trial and Appeal Board (“PTAB”) in Virginia. The fraud claim, on its face, challenges 

conduct arising solely out of events outside of Texas in the PTAB proceedings, and no amount of 

jurisdictional discovery can change that fact. CyWee’s pursuit of discovery is based largely on its 

vague and unfounded claims of a “conspiracy” that, even if true (which they are not), are irrelevant 

to resolving Google’s motion to dismiss. CyWee’s wasteful “fishing expedition” for needless 

discovery would “serve no benefit” other than to impose burden and cost on the parties and the 

Court, and to delay this litigation. Catalyst Medium Four, Inc. v. CardShark, LLC, 2015 WL 

1412591, at 8 (W.D. Tex. Mar. 26, 2015). This Court should reject CyWee’s ploy to try to salvage 

a baseless fraud claim filed in a forum with no connection to the dispute and deny CyWee’s motion. 

II. RELEVANT BACKGROUND 

CyWee’s Fraud Claim. As detailed in Google’s pending motion to dismiss,1

 CyWee’s 

First Amended Complaint (“FAC”) asserts one claim for common law fraud premised entirely on 

 

1

 For the Court’s convenience, Google focuses on the background relevant to CyWee’s motion for 

jurisdictional discovery. Google’s motion to dismiss has a full recitation of the facts. See Dkt. 11. 

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Google’s allegedly deficient IPR petitions to the PTAB. Dkt. 11 at 1, 3-8. CyWee claims Google 

improperly failed to disclose in its IPR petitions that LG and Samsung were alleged parties-ininterest. Id.; CyWee’s Mot. at 1. The PTAB proceedings—including Google’s filing of the IPR 

petitions with the PTAB, CyWee’s filing of its motion to terminate the IPR based on the same 

party-in-interest allegations, and the trial resulting in the PTAB’s final decision squarely rejecting 

CyWee’s motion to terminate—indisputably occurred outside of Texas. Dkt. 11 at 3-8. CyWee’s 

fraud claim thus—on its face—depends on events with no connection, much less a material 

connection, to Texas. 

Google’s Motion to Dismiss. In its motion to dismiss, Google argues the Court lacks 

personal jurisdiction in this case, and that, in any event, the fraud claim fails as a matter of law 

because it is preempted by federal law, barred by principles of collateral estoppel, and inadequately 

pled under Texas law. See Dkt. 11. On the jurisdictional issue, the Court lacks general personal 

jurisdiction because Google was not formed in Texas and is not headquartered there, and CyWee 

did not even plead general jurisdiction. Id. at 9-10. The Court lacks specific personal jurisdiction 

because the fraud claim, as pled, does not depend on (or “arise out of”) any Google contacts with 

Texas. Id. at 10-12. Rather, the claim turns entirely on facts relating to events that occurred before 

the PTAB. Id. 

Google also addresses CyWee’s allegations of specific jurisdiction based on Google’s 

“contacts” with Texas in paragraph 5 of the FAC. Id. at 11-12. In that paragraph, CyWee asserts 

that Google “does business in Texas and is believed to have committed a tort in whole or in part 

within the state of Texas” and that “this suit arises, at least in part, from Google’s contacts with 

Texas,” including allegedly “(i) directing its fraudulent misrepresentations to Texas, (ii) knowingly 

and intentionally injecting itself into litigation pending in the state of Texas, and (iii) conspiring 

with Texas based entities Huawei and ZTE.” FAC ¶ 5. These conclusory allegations are flawed 

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and cannot confer jurisdiction. Dkt. 11 at 11 (citing, e.g., Panda Brandywine Corp. v. Potomac 

Elec. Power Co., 253 F.3d 865, 868-69 (5th Cir. 2001) (courts do not “credit conclusory 

allegations, even if uncontroverted,” including those made “on information and belief”)). Google 

also explains that, even accepting as true CyWee’s bare allegations and what CyWee describes as 

Google’s three “contacts” with Texas, the Court still has no specific jurisdiction. Id. at 11-12. 

That is because (1) the only “misrepresentations” CyWee alleges in the FAC are Google’s partyin-interest disclosures, which indisputably were filed in the IPR (and litigated) outside of Texas 

before the PTAB, (2) defending a separate lawsuit in Texas does not automatically confer personal 

jurisdiction, as the Fifth Circuit has held, and CyWee never pleads or explains how the Texas 

litigation bears on the fraud claim or Google’s defenses to it, and (3) Google did not “conspire” 

with Huawei or ZTE (or anyone else) but, even if it did, those allegations are irrelevant or 

peripheral to this litigation and Google’s grounds for dismissal. Id. 

Google’s motion to dismiss, therefore, argues the Court lacks personal jurisdiction based 

entirely on CyWee’s own allegations, not based on any new factual allegations that raise disputes 

that must be resolved through jurisdictional discovery. 

Relevant Procedural History. On April 24, 2020, the parties agreed to a briefing schedule 

for CyWee’s opposition to Google’s motion to dismiss (now due June 1, 2020) and Google’s reply 

(now due June 29, 2020), which the Court granted. Dkt. 15 (and text order dated April 24, 2020). 

On May 7, 2020, CyWee informed Google that it intended to request jurisdictional discovery and 

asked whether Google would oppose; Google requested the facts CyWee intended to try to develop 

through discovery so that Google could evaluate its position, but indicated it did not believe 

jurisdictional discovery was appropriate given the fraud allegations and Google’s arguments for 

dismissal. CyWee refused to provide those facts, stating only that it wanted to propound 

interrogatories and requests for documents and take depositions of Google representatives and 

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third parties. A day later, on May 8, 2020, CyWee filed its Motion for Jurisdictional Discovery. 

Dkt. 17. 

III. CYWEE’S MOTION FOR JURISDICTIONAL DISCOVERY MUST BE DENIED 

CyWee does not come close to meeting the requirements for jurisdictional discovery, much 

less for the unspecified and disproportional discovery it apparently seeks. Fed. R. Civ. P. 26(b)(1) 

(discovery must be relevant and “proportional to the needs of the case”). 

As this Court has held, a party is “not entitled to conduct jurisdictional discovery unless 

[it] first makes ‘a preliminary showing of jurisdiction’” by presenting “factual allegations that 

suggest with reasonable particularity the possible existence of the requisite contacts.’” Moon v. 

Sandals Resort Int’l, Ltd., 2013 WL 12396985, at *7 (W.D. Tex. Dec. 27, 2013) (Manske, J.); Bar 

Grp., LLC v. Business Intelligence Advisors, 215 F. Supp. 3d 524, 545 (S.D. Tex. 2017). CyWee 

“must state what facts [it] believes discovery would uncover and how those facts would support 

personal jurisdiction.” Moon, 2013 WL 12396985, at *7 (citing Kelly v. Syria Shell Petroleum 

Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000)); Mello Hielo Ice, Ltd. v. Ice Cold Vending LLC, 

2012 WL 104980, at *7 (N.D. Tex. Jan. 11, 2012) (“A plaintiff seeking discovery on matters of 

personal jurisdiction is expected to identify the discovery needed, the facts expected to be obtained 

thereby, and how such information would support personal jurisdiction.”). The discovery also 

must be important to resolve a factual dispute necessary to withstand Google’s motion to dismiss. 

E.g., Catalyst, 2015 WL 1412591, at *8; Freeman v. U.S., 556 F.3d 326, 342 (5th Cir. 2009) 

(jurisdictional discovery must be “likely to produce the facts needed to withstand” the motion to 

dismiss). That is, the Court should not “permit discovery on matters of personal jurisdiction unless 

[Google’s] motion to dismiss raises issues of fact” that jurisdictional discovery would resolve. 

Catalyst, 2015 WL 1412591, at *8 (no jurisdictional discovery because “there are no factual 

disputes jurisdictional discovery would resolve”); 21st Century Financial Servs. v. Mandelbaum, 

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2011 WL 3844209, at *2 (W.D. Tex. Aug. 30, 2011) (denying jurisdictional discovery, stating that 

“the Fifth Circuit has approved the denial of jurisdictional discovery where the discovery sought 

could not have added any significant facts”); Freeman 556 F.3d at 342; Monkton Ins. Serv., Ltd. 

v. Ritter, 768 F.3d 429, 434 (5th Cir. 2014). 

In its motion, CyWee recites the same boilerplate allegations of specific jurisdiction as in 

its FAC (at ¶ 5) to argue it should be given carte blanche authority to propound, as it sees fit, 

“interrogatories, request[s] for production of documents, ... third-party subpoenas, and [to] take 

deposition testimony ... of Google representatives and relevant third parties.” Dkt. 17 at 1-2, 4.2

 

But CyWee does not and cannot explain how those allegations (which Google addressed in its 

motion to dismiss) establish a preliminary showing of personal jurisdiction, what specific facts it 

believes discovery would uncover or how those facts would support jurisdiction given the FAC’s 

allegations, or how its desired discovery would yield such information. Bar Grp., 215 F. Supp. 3d 

at 545 (citing Kelly, 213 F.3d at 855 (no discovery where plaintiffs failed to “describe the discovery 

they contend should have been allowed, what facts they hoped to obtain from such discovery, or 

how it would produce information that would support jurisdiction”)); see also Dkt. 11 at 10-12. 

Further, CyWee does not—and, again, cannot—articulate how jurisdictional discovery would “be 

relevant or helpful” at all to resolve any factual disputes necessary to withstand Google’s motion 

to dismiss. Catalyst, 2015 WL 1412591, at *8 (the “Court fails to see how jurisdictional discovery 

would be relevant or helpful”); 21st Century, 2011 WL 3844209, at *2; Freeman, 556 F.3d at 342. 

Indeed, none of Google’s jurisdictional arguments—or other arguments for dismissal—turn on 

 

2

 Even in cases where jurisdictional discovery is appropriate (unlike here), a plaintiff is not entitled 

to unlimited discovery in all forms, as CyWee suggests. That is confirmed by CyWee’s own cited 

case, Walk Haydel & Assoc. v. Coastal Power Prod., 517 F.3d 235, 241 (5th Cir. 2008), which 

held that, where disputed jurisdictional facts exist, the court may “receive interrogatories, 

depositions, or any combination of the recognized methods of discovery,” but “has discretion as 

to the type and amount of discovery to allow,” and should also consider undisputed facts. 

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disputed facts; they are based entirely on CyWee’s own allegations. Catalyst, 2015 WL 1412591, 

at *8; SGIC Strategic Global Inv. Capital, Inc. v. Burger King Europe Gmbh, 2015 WL 4162599, 

at *4-5 (N.D. Tex. Jul. 9, 2015) (plaintiffs “fail to identify issues of fact in Defendant’s Motion to 

Dismiss whose resolution would be relevant to the question of personal jurisdiction”). 

Unable to identify any dispute in this case for which the requested discovery would be 

relevant, CyWee instead speculates that it might uncover information about alleged conspiracies 

with “entities,” including “Huawei and ZTE” (which allegedly have U.S. headquarters in Texas), 

and with Samsung to “drop the [Bachmann] reference” in a separate, unrelated Texas litigation. 

Dkt. 17 at 2, 3-4. CyWee’s speculation about completely fabricated conspiracies is nothing more 

than a red herring and should be flatly rejected. 

First, CyWee does not even attempt to offer any factual allegations regarding any 

“conspiracy” with Huawei and ZTE—because none exist—much less identify what discovery it 

hopes to uncover or how that discovery could possibly bear on any issues in this case, particularly 

given that Huawei and ZTE are not parties here. CyWee’s request for discovery “in the hopes it 

might, with any luck, reveal jurisdiction is a textbook fishing expedition” with no basis in its 

motion or its own allegations in the FAC. Catalyst, 2015 WL 1412591, at *8. 

Second, CyWee likewise hopes discovery might yield information about alleged 

“meetings” between “Texas-based law firms and lawyers representing Samsung” related to the 

“Bachmann reference” in a separate Texas litigation. Dkt. 17 at 3-4. But as Google explained in 

its motion to dismiss, the PTAB already expressly held that CyWee’s baseless claim of 

“coordination” over the Bachmann reference—even if true (it is not)—does not prove Samsung 

was a “party-in-interest”; to the contrary, the PTAB held that Samsung’s treatment of Bachmann 

in the litigation was “strong evidence that Google was not representing Samsung’s interests.” See 

Dkt. 11 at 6 (emphasis added). More importantly, for purposes of CyWee’s request for discovery, 

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CyWee does not and cannot show how any “meetings” related to the Bachmann reference in a 

separate Texas litigation would even bear on this litigation, the fraud claim pled in the FAC, or 

Google’s defenses set forth in its motion to dismiss (including based on jurisdictional defects). 

The fraud claim, as CyWee admits, is premised entirely on Google’s party-in-interest disclosures 

in its IPR petitions filed with and litigated in the PTAB proceedings. Dkt. 17 at 1; FAC ¶ 52. Any 

alleged “meetings” in Texas with Samsung regarding the Bachmann reference—which did not 

occur and for which CyWee has offered no evidence to plausibly support—are irrelevant to 

Google’s party-in-interest disclosures and to the issues raised by Google’s motion to dismiss. Thus, 

no amount of discovery—into alleged “meetings” or otherwise—would help CyWee withstand 

dismissal. Freeman, 556 F.3d at 342 (discovery must be “likely to produce the facts needed to 

withstand” dismissal); Dkt. 11 at 10 (citing, e.g., Sangha v. Navig8 ShipManagement, 882 F.3d 

96, 101 (5th Cir. 2018) (plaintiff must show claim “arises out of” Texas contacts). Because 

Google’s pending motion to dismiss raises “no factual disputes jurisdictional discovery would 

resolve,” CyWee’s motion here is a futile request for discovery that would “serve no benefit.” See 

Catalyst, 2015 WL 1412591, at *8.3

 

CyWee has not established any basis for jurisdictional discovery into issues material to 

Google’s motion to dismiss. CyWee’s hope that discovery might lead to information about 

imagined “conspiracies” that, even if they existed, would have no relevance to the motion to 

dismiss is nothing more than pretext to harass Google and stall the dismissal of its fatally-flawed 

FAC. Bar Grp., 215 F. Supp. 3d at 545 (“A court may also deny jurisdictional discovery where 

 

3

 Far from supporting discovery here, the cases CyWee cites help Google. In Corder v. BBG 

Commc’ns, Inc., 2012 WL 3843691, at *10-11 (W.D. Tex. July 30, 2012) (cited in CyWee’s 

Motion at 3), the Court held the plaintiff had not established personal jurisdiction and denied its 

request for jurisdictional discovery, in part because the request was “too vague to warrant 

discovery.” See also Baker v. Hughes Inc. v. Homa, 2012 WL 1551727, at *12-13 (S.D. Tex. Apr. 

30, 2012) (discovery not appropriate where it “could not have added any significant facts”). 

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the plaintiff offers only speculation as to jurisdiction” and “is waging a fishing expedition into 

jurisdictional facts.”). 

IV. CONCLUSION 

CyWee should respond to Google’s motion to dismiss, if it has a good faith basis to do so, 

without unnecessary and wasteful discovery. CyWee’s motion for jurisdictional discovery and a 

60-day stay of further briefing on Google’s motion to dismiss should be denied. 

Dated: May 15, 2020 /s/ Paige Arnette Amstutz 

Luann L. Simmons (Pro Hac Vice) 

lsimmons@omm.com 

Adam M. Kaplan (Pro Hac Vice) 

akaplan@omm.com 

Bill Trac (Pro Hac Vice) 

btrac@omm.com 

O’MELVENY & MYERS LLP 

Two Embarcadero Center, 28th Floor

San Francisco, CA 94111-3823 

Telephone: 415-984-8700 

Facsimile: 415-984-8701 

Paige Arnette Amstutz 

State Bar No. 00796136 

pamstutz@scottdoug.com 

SCOTT DOUGLASS & McCONNICO LLP 

303 Colorado Street, Suite 2400 

Austin, TX 78701-2589 

Telephone: (512) 495-6300 

Facsimile: (512) 495-6399 (fax) 

Attorneys for Defendant Google LLC

 

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CERTIFICATE OF SERVICE 

Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify 

that, on May 15, 2020, all counsel of record who have appeared in this case are being served with 

a copy of the foregoing via the Court’s CM/ECF system. 

/s/ Paige Arnette Amstutz 

 Paige Arnette Amstutz 

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