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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND

DEVELOPMENT,

Plaintiff,

v.

ZTE CORPORATION, ZTE (USA) 

INC., AND ZTE (TX), INC. 

Defendants.

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CIVIL ACTION NO. 6:20-cv-487-ADA

CIVIL ACTION NO. 6:20-cv-488-ADA

CIVIL ACTION NO. 6:20-cv-489-ADA

CIVIL ACTION NO. 6:20-cv-490-ADA

CIVIL ACTION NO. 6:20-cv-491-ADA

CIVIL ACTION NO. 6:20-cv-492-ADA

CIVIL ACTION NO. 6:20-cv-493-ADA

CIVIL ACTION NO. 6:20-cv-494-ADA

CIVIL ACTION NO. 6:20-cv-495-ADA

CIVIL ACTION NO. 6:20-cv-496-ADA

CIVIL ACTION NO. 6:20-cv-497-ADA

JURY TRIAL DEMANDED

RESPONSE TO ZTE CORPORATION’S MOTION TO RECONSIDER

ZTE Corporation’s (“ZTC’s”) motion to reconsider must be denied because it fails to 

establish a manifest error of law or fact and does not present newly discovered evidence. Instead, 

it raises new arguments and evidence. A motion to reconsider “must clearly establish either a 

manifest error of law or fact or must present newly discovered evidence” and “cannot be used to 

raise arguments which could, and should, have been made before the judgment issued” or “to argue 

a case under a new legal theory.” United States v. Wilson, 555 Fed. Appx. 417, 418 (5th Cir. 2014). 

If the ZTE Defendants believed ZTA was an indispensable party, they should have made this 

argument (to the extent they could properly do so in a Rule 12 motion) in their renewed Motion to 

Dismiss (Dkt. 471). They did not do so, see Dkt. 47, and cannot use a motion to reconsider to bring 

this argument for the first time.

Regardless, ZTC’s motion must be denied because ZTA is not an indispensable party.

Further, ZTC’s allegation that ZTA is an indispensable party asks that this Court disregard 

1 Cites to the docket refer to the -487 case. 

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WSOU’s well pleaded facts. Thus, ZTC’s new arguments are not only improper for a motion to 

reconsider, but they are also improper for a Rule 12(b) motion to dismiss. 

ZTC’s meritless motion to reconsider should be promptly denied. In recent IPR filings, 

ZTC represented to the Board that this motion to reconsider “is likely to succeed,” hoping this 

representation will convince the Board to institute trial. Exhibit D2 at 1, 3. ZTC’s IPR filings 

further argue that ZTC’s motion to reconsider is causing a delay of Markman, which will likewise 

delay trial. Id. at 2. ZTC’s delay tactics should not be rewarded. 

A. Background: ZTC abandoned its original motion to dismiss after WSOU filed its 

Amended Complaint.

On October 9, 2020, ZTC filed a motion to dismiss or transfer, arguing ZTC lacked 

sufficient minimum contacts with Texas to allow this Court to invoke personal jurisdiction. See 

Dkt. 27 at 3-5. In it, ZTC argued that it does not do business in the United States and deliberately 

avoided contacts within the United States. Id. ZTC further argued that any theory of specific 

jurisdiction “relating to the patent infringement alleged in this case . . . could only be traced back 

to [ZTC] by bootstrapping [ZTC’s] dealings with and commerce through its own United States 

subsidiary.” Id. at 6. 

In response, WSOU filed an Amended Complaint on November 6, 2020, mooting ZTC’s 

original motion to dismiss. See Dkt. 38. The Amended Complaint alleges that jurisdiction is proper 

because the ZTE Defendants place goods and services, including Accused Products, into the 

stream of commerce knowing they will end up in Texas. Id. ¶ 10. The Amended Complaint added 

details specifically about ZTC’s acts of infringement in the United States, including that ZTC: (1) 

sells and/or licenses Accused Products directly to ZTA and ships them to ZTA in Texas; (2) targets 

other Texas customers through ZTC’s website and ships Accused Products to customers in Texas; 

(3) specifically targets Accused Products at individuals and companies in Texas at least by selling 

and/or licensing Accused Products to ZTA, a consumer and distributor of Accused Products 

manufactured by ZTC; (4) assists ZTA with troubleshooting or other technical support of ZTC 

2 Exhibits to this response are being filed only in the -487.

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equipment sold in the United States, including Texas; (5) issued releases from Richardson, Texas, 

marketing ZTE products, including Accused Products – releases hosted on ZTC’s website and 

including a “ZTE Corporation” copyright; (6) issued a release from “RICHARDSON, Texas” 

announcing that Blade Vantage 2 would be available in “Verizon stores across the U.S.” and would 

“operate on Verizon’s national network;” (7) regularly ships ZTC products to ZTA’s headquarters 

and other addresses in Texas. Id. ¶¶10-21. 

As a result of WSOU’s Amended Complaint, ZTC abandoned its motion to dismiss for 

lack of jurisdiction. When the ZTE Defendants filed their renewed Motion to Dismiss (Dkt. 47), 

they challenged only whether venue was proper over ZTA and ZTX under §1400(b), admitting 

that §1400(b) is “inapplicable” to ZTC and that venue over ZTC is governed solely by §1391, 

under which venue over a foreign corporation is proper in every district. Id. at 21 (citing case 

authority that recognizes venue over a foreign corporation is proper in every district). In view of 

the Amended Complaint, they did not argue that jurisdiction or venue was improper over ZTC and 

did not re-urge the original ZTC motion to dismiss (which had been denied as moot). 

B. Venue is proper over ZTC, and the ZTE Defendants never argued otherwise. 

This Court properly determined that venue is proper over ZTC because ZTC is a foreign 

corporation. Venue for foreign corporations is governed by the general venue statute, which 

provides that “a defendant not resident in the United States may be sued in any judicial district.” 

28 U.S.C. § 1391(c)(3); Brunette Mach. Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 714, 92 

S. Ct. 1936, 1941, 32 L. Ed. 2d 428 (1972) (“[1391(c)(3)] is properly regarded, not as a venue 

restriction at all, but rather as a declaration of the long-established rule that suits against aliens are 

wholly outside the operation of all the federal venue laws, general and special.”). 

Because it is indisputable that venue is proper over ZTC, the ZTE Defendants never argued 

otherwise. Their renewed motion to dismiss argued only that venue was improper as to ZTA and 

ZTX. Throughout the venue discovery period, the ZTE Defendants refused to produce relevant 

information from ZTC, insisting ZTC should not be required to produce such information because 

it was not challenging venue. In a letter dated January 6, 2021, the ZTE Defendants stated: 

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“Finally, we note that only ZTE USA and ZTE TX challenged venue in the renewed Motion to 

Dismiss. Thus, ZTE’s responses will generally be limited to ZTE USA.” Exhibit A at 1 (emphasis 

added). In their formal objections to WSOU’s venue discovery requests, the ZTE Defendants 

objected to WSOU’s requests because they sought information “related to parties not challenging 

venue in these cases,” stating again that “[o]nly ZTA and ZTX challenged venue for these cases 

in the renewed Motion to Dismiss. ZTC did not.” Exhibit B at 3 (emphasis added).

The paragraph of the renewed Motion to Dismiss directly addressing ZTC does not argue 

that venue is improper over ZTC. See Dkt. 47 at 21. To the contrary, it admits that ZTC cannot 

challenge venue. It cites Slyce Acquisition, Inc. – a case recognizing that a foreign corporation 

“may be sued in any judicial district”3 – to support the undisputed statement that “28 U.S.C. §1391 

is the sole basis for venue in patent infringement actions against defendants that do not reside 

within the United States.” Id. Further, it admits the undisputed fact that §1400(b) (the section ZTA 

and ZTX relied on to challenge venue) is “inapplicable” to ZTC. In other words, the paragraph of 

the renewed Motion to Dismiss dedicated to ZTC admits that ZTC could not challenge venue under 

§1400(b) because §1391 allows a foreign corporation to be sued in any judicial district in the 

United States. 

There was no need for WSOU to “respond” to ZTC’s admission that it could not challenge 

venue. Despite this, after this Court found venue proper as to ZTC, counsel for ZTE wrote to this 

Court insisting that this Court was incorrect, disingenuously stating “[w]e are unable to locate in 

WSOU’s briefing where it argued venue was proper for ZTE Corporation.” There was, of course, 

no reason for any such argument in WSOU’s briefing. 

3 Slyce Acquisition Inc. v. Syte - Visual Conception Ltd., 422 F. Supp. 3d 1191, 1205–06 (W.D. 

Tex. 2019), reconsideration denied, W-19-CV-00257-ADA, 2020 WL 278481 (W.D. Tex. Jan. 10, 

2020) (“With respect to Syte, because Syte admits it is a foreign corporation, 28 U.S.C. § 

1391(c)(3)—and not 28 U.S.C. § 1400—applies. And pursuant to 28 U.S.C. § 1391(c)(3), venue in 

proper in this District for a foreign corporation such as Syte.”) (cleaned up).

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C. ZTC’s new arguments are not proper in a motion to reconsider. 

ZTC’s motion to reconsider should be denied because it is based entirely on new arguments 

that could and should have been brought in the renewed Motion to Dismiss. Knowing it cannot 

challenge venue, ZTC now argues for the first time that ZTA is an indispensable party, and 

therefore, ZTC cannot remain here alone. The renewed Motion to Dismiss does not argue that ZTA 

is an indispensable party. See Dkt. 47. The word “indispensable” is found nowhere in the motion. 

Id. Nor does the renewed Motion to Dismiss cite the authorities and evidence upon which ZTC 

now relies. In support of its new argument, ZTC relies on Fed. R. Civ. P. 19(b), In re Rolls Royce 

Corp., 775 F.3d 671, 680 (5th Cir. 2014), and Haas v. Jefferson Nat. Bank of Miami Beach, 442 

F.2d 394, 396 (5th Cir. 1971). None of these authorities are cited anywhere in the renewed Motion 

to Dismiss. See Motion to Dismiss. 

The authorities that are cited in the renewed Motion to Dismiss (Magnacoustics and AGIS) 

do not require dismissal of all defendants whenever there is dismissal of any defendant, nor do 

they contain any discussion of indispensable parties. In Magnacoustics, the Federal Circuit found 

the district court could not properly transfer three defendants to the Eastern District of New York 

where it was undisputed that venue there was improper over two of the defendants.4 It did not hold 

that a district court must dismiss all defendants if venue is improper over any one defendant. In 

AGIS, the EDTX declined to sever ZTA and ZTX because it was transferring ZTA. It noted that if 

ZTA was transferred and ZTX remained, the same case would be litigated in “two different 

forums.” See AGIS Software Development, LLC v. ZTE Corp. et al., 2018 WL 4854023, at *3 n. 6 

(E.D. Tex. Sept. 28, 2018). There is no such risk here, as this Court dismissed ZTA and ZTX, and 

WSOU has not refiled against them in a different forum. AGIS did not hold that severance is never 

4 Magnacoustics, Inc. v. Resonance Tech. Co., 132 F.3d 49 (Fed. Cir. 1997) (“Without addressing 

the propriety of the conclusion regarding Resonance, we must reverse because of the presence in 

the suit of the additional defendants Mr. and Mrs. Ziarati.2 Mr. and Mrs. Ziarati, as individuals, 

remain defendants in this action. It is undisputed that they do not “reside” in New York, and that 

they do not “have a regular and established place of business” in New York. Therefore, under the 

plain language of 28 U.S.C. § 1400(b), venue in New York is not proper as to the individual 

defendants Mr. and Mrs. Ziarati. Because venue requirements must be met as to each defendant, 

the transfer under 28 U.S.C. § 1404(a) was improper.”).

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proper. Such a holding would clearly be wrong. Dismissal of certain defendants for improper 

venue does not mandate dismissal of all defendants. See e.g., Andra Grp., LP v. Victoria’s Secret 

Stores, LLC, No. 4:19-cv-288, 2020 WL 1465894 at *1 (E.D. Tex. Mar. 26, 2020) (dismissing 

several “Non-Store” defendants for improper venue without dismissing the “Store” defendant). 

Magnacoustics and AGIS do not say otherwise. 

As new evidence, ZTC attaches excerpts from WSOU’s infringement contentions that are 

not cited in the renewed Motion to Dismiss. The infringement contention language ZTC relies on 

(language that does not somehow show ZTA is an indispensable party) was included in WSOU’s 

preliminary infringement contentions served on November 3, 2020, a month before the ZTE 

Defendants filed the renewed Motion to Dismiss on December 4, 2020. See Exhibit C at 3, 5, 41. 

ZTC cannot base its motion for reconsideration on evidence that was available to ZTC when the 

renewed Motion to Dismiss was filed. Nor can it base a Rule 12(b) motion on evidence that

(unsuccessfully) attempts to contradict well pleaded facts in WSOU’s Amended Complaint. 

D. ZTA is not an indispensable party, and its dismissal does not force litigation in two 

separate forums. 

ZTC argues that ZTA is an indispensable party because (1) WSOU’s infringement 

contentions supposedly show WSOU relies on ZTA “for its alleged infringement theories” and (2) 

ZTC is allegedly “removed from alleged infringement activity in the United States.” Mtn. at 6-7. 

It is not proper to make these new arguments in a motion to reconsider. Further, ZTC’s new 

arguments are improper for a Rule 12(b) motion because they ask this Court to ignore the well 

pleaded facts in WSOU’s Amended Complaint. Pursuant to Federal Rule of Civil Procedure 

12(b)(6), a claim has “facial plausibility” and must not be dismissed “when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations 

omitted). 

ZTC’s Amended Complaint contains ample allegations to support the reasonable inference

that ZTC has committed acts of infringement not only in the United States but in Texas and in this 

Case 6:20-cv-00487-ADA Document 108 Filed 08/18/21 Page 6 of 9
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District. Dkt. 38 ¶¶ 10 – 21. Excerpts from WSOU’s infringement contentions showing ZTA’s 

involvement in some acts of infringement do not support the conclusion that infringement in the 

U.S. occurs only through ZTA or that ZTC does not commit acts of infringement here.5

E. WSOU did not waive the opportunity to address ZTC’s new arguments. 

There is no merit to ZTC’s argument that WSOU waived the right to address ZTC’s new 

arguments. There was no need for WSOU to argue venue is proper over ZTC because the renewed 

Motion to Dismiss does not argue venue is improper over ZTC. To the contrary, the renewed 

Motion to Dismiss admits that (1) ZTC could not challenge venue based on § 1400(b), as that 

section is inapplicable to foreign corporations, and (2) venue over ZTC is governed solely under 

§ 1391, under which a foreign corporation like ZTC cannot challenge venue. See Dkt. 47 at 21. 

Further, ZTC repeatedly insisted that ZTC was not disputing venue to avoid venue discovery on 

ZTC. See Ex. A and B.6 Had ZTC instead made the arguments it is now making, ZTC could not 

have argued venue discovery was improper against ZTC. Rather, ZTC would have had to admit 

venue discovery from ZTC was proper to explore the allegations ZTC now makes in support of its 

motion to reconsider.

There was also no need for WSOU to “present arguments in opposition to Magnacoustics

and AGIS” because those cases are cited in the “Statement of Venue Law” section of the renewed 

Motion to Dismiss merely to support the basic statements that “[v]enue must be determined as to 

each defendant separately” and “[v]enue must be proper for all defendants” that remain in a case. 

Dkt. 47 at 7. WSOU did not respond to those basic statements because WSOU does not dispute 

them. WSOU was not required to predict how ZTC would misinterpret those cases to later 

5 ZTC’s claim that ZTA is an indispensable party is also belied by the fact that ZTC signed powers 

of attorney for all three ZTE entities (ZTC, ZTA, and ZTX), claiming to have authority for all 

three entities. ZTC also claims to be a party in interest in the IPR filings by the ZTE entities.

6 Ultimately, this Court ordered the ZTE Defendants to tender a witness capable of testifying about 

ZTC. During the deposition, however, the witness testified that he was not prepared to testify 

concerning ZTC, mistakenly believing the notice of deposition was only for ZTE (USA). See Dkt. 

85, Ex. 4 at 125.

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erroneously argue that dismissal of one defendant for improper venue requires dismissal of every 

defendant for improper venue. Indeed, it would be difficult to anticipate such an illogical argument. 

Finally, ZTC did not (and could not) cite Magnacoustics or AGIS to support its new 

argument that ZTC must be dismissed because ZTA is indispensable. This is clear from the fact 

that the renewed Motion to Dismiss never alleges that ZTA is indispensable (and the fact that ZTC 

felt the need to include new case authority and pages of new argument in its motion to reconsider). 

WSOU did not waive its right to address this new theory improperly raised for the first time in 

ZTC’s motion to reconsider. 

ZTC’s frivolous motion to reconsider should be promptly denied. ZTC’s overall conduct –

including its attempt to now rely on evidence and allegations from and about ZTC after ZTC 

refused to participate in venue discovery on grounds that it was not challenging venue – is 

sanctionable. 

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Dated: August 18, 2021 Respectfully submitted,

By: /s/ Ryan Loveless

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

Counsel for Plaintiff WSOU Investments, LLC

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing instrument was served or delivered electronically 

via the U.S. District Court [LIVE]-Document Filing System to all counsel of record August 18, 

2021.

/s/ Ryan Loveless

Ryan S. Loveless

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