PLAINTIFF’S OBJECTIONS TO ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES 

MAGISTRATE JUDGE PAGE 1

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

JURY TRIAL DEMANDED

PLAINTIFF’S OBJECTIONS TO

ORDER AND REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b), Plaintiff CyWee Group Ltd. (“Plaintiff” or 

“CyWee”) objects to and seeks reconsideration of Magistrate Judge Jeffrey C. 

Manske’s August 18, 20201 Order and Report and Recommendation (Dkt. No. 27), 

and in support thereof shows as follows:

I. BACKGROUND

CyWee brought the instant action against Defendant Google LLC (“Defendant” 

or “Google”) alleging common law fraud. In its First Amended Complaint, CyWee 

provides several bases for this Court’s personal jurisdiction over Google. See Dkt. No. 

4 (“First Amended Complaint”) ¶¶ 5–6. Among other things, CyWee pleads, “Google’s 

contacts include, but are not limiting to: (i) directing its fraudulent 

misrepresentations to Texas, (ii) knowingly and intentionally injecting itself into 

1 The Order and Report and Recommendation was signed August 18, 2020, however, it was not served 

until August 20, 2020.

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litigation pending in the State of Texas, and (iii) conspiring with Texas based entities 

Huawei and ZTE.” Id. at ¶ 5.

Google brought a Motion to Dismiss (Dkt. No. 11) arguing that this Court lacks 

personal jurisdiction and alleging that CyWee has failed to state a claim. In response, 

CyWee sought leave to take jurisdictional discovery. Dkt. No. 17. In his Order and 

Report and Recommendation, the Magistrate Judge denied CyWee leave to take 

jurisdictional discovery and recommended that this action be dismissed for lack of 

personal jurisdiction.

II. ARGUMENT

The Magistrate Judge erred by: (i) denying CyWee jurisdictional discovery, and 

(ii) recommending this action be dismissed prior to allowing CyWee an opportunity 

to take jurisdictional discovery.

“When the defendant disputes the factual bases for jurisdiction . . . the court 

may receive interrogatories, depositions, or ‘any combination of the recognized 

methods of discovery’ to help it resolve the jurisdictional issue.” Walk Haydel & 

Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008) (quoting 

Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)). “To be 

entitled to jurisdictional discovery, the plaintiff must make a ‘preliminary showing of 

jurisdiction.’ This preliminary showing is a lesser standard than a prima facie 

case of jurisdiction; the plaintiff need only present ‘factual allegations that suggest 

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

Corder v. BBG Commc’ns, Inc., No. CIV.A. W-11-CA-00264, 2012 WL 3843691, at *10 

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(W.D. Tex. July 30, 2012) (Smith, J.) (emphasis added) (quoting Fielding v. Hubert 

Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005)). “[D]iscovery should ordinarily 

be granted where pertinent facts bearing on the question of jurisdiction are 

controverted or where a more satisfactory showing of the facts is necessary.” Baker 

Hughes Inc. v. Homa, No. CIV.A. H-11-3757, 2012 WL 1551727, at *12 (S.D. Tex. Apr. 

30, 2012) (quoting Nuance Commc’ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 

1235 (Fed. Cir. 2010)).

In his Order and Report and Recommendation, the Magistrate Judge found:

“Given CyWee’s inability to establish a prima facie case for personal 

jurisdiction, it is unlikely additional discovery information on Google’s 

contacts with Texas would add any ‘significant facts,’ especially because 

the theories on which CyWee seeks discovery would not confer personal 

jurisdiction over Google. Therefore, the Court ORDERS CyWee’s 

Motion for Jurisdictional Discovery be DENIED.”

Dkt. No. 27 at 9 (internal citations omitted) (emphasis added). To be entitled to 

jurisdictional discovery, a plaintiff “need only present factual allegations that suggest 

with reasonable particularity the possible existence of the requisite contacts.” 

Corder, 2012 WL 3843691, at *10 (emphasis added). This is “a lesser standard than 

a prima facie case of jurisdiction.” Id. Accordingly, the Magistrate Judge incorrectly 

held CyWee to a higher standard of proof.

As demonstrated through its pleadings and briefing, CyWee has shown the 

possible existence of requisite contacts. The jurisdictional discovery would allow 

CyWee to gather further evidence that shows substantial portions of Google’s 

fraudulent conspiracy are connected to Texas and were intended to impact the EDTX 

Litigation. Therefore, the Magistrate Judge erred in denying jurisdictional discovery. 

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Accordingly, the Court should reconsider the Magistrate Judge’s ruling and grant 

CyWee jurisdictional discovery.

Furthermore, the Magistrate Judge’s recommendation that this action be 

dismissed is premature. As discussed above, CyWee is entitled to take jurisdictional 

discovery. That discovery is likely to lead to additional facts establishing Google’s 

jurisdictional ties to Texas. Therefore, the Court should decline to adopt the 

Magistrate Judge’s recommendation this case be dismissed and defer ruling on 

Google’s Motion to Dismiss until jurisdictional discovery is completed.

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Dated: September 3, 2020 Respectfully submitted,

By: /s/ Michael W. Shore

Michael W. Shore (Texas 18294915)

mshore@shorechan.com

Alfonso G. Chan (Texas 24012408)

achan@shorechan.com

Ari B. Rafilson (Texas 24060456)

(application pending)

arafilson@shorechan.com

William D. Ellerman (Texas 24007151)

wellerman@shorechan.com

Corey M. Lipschutz (Texas 24099303)

clipschutz@shorechan.com

SHORE CHAN DEPUMPO LLP

901 Main Street, Suite 3300

Dallas, Texas 75202

Tel: (214) 593-9110

Fax: (214) 593-9111

COUNSEL FOR PLAINTIFF 

CYWEE GROUP LTD.

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CERTIFICATE OF SERVICE

In accordance with Federal Rule of Civil Procedure 5 and Local Rule CV-5, I 

hereby certify that a true and correct copy of the foregoing has been served on all 

counsel of record via the CM/ECF electronic filing system on September 3, 2020.

 /s/ Michael W. Shore

Michael W. Shore

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