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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C.A. NO. 6:20-cv-00487-ADA

C.A. NO. 6:20-cv-00488-ADA

C.A. NO. 6:20-cv-00489-ADA

C.A. NO. 6:20-cv-00490-ADA

C.A. NO. 6:20-cv-00491-ADA

C.A. NO. 6:20-cv-00492-ADA

C.A. NO. 6:20-cv-00493-ADA

C.A. NO. 6:20-cv-00494-ADA

C.A. NO. 6:20-cv-00495-ADA

C.A. NO. 6:20-cv-00496-ADA

C.A. NO. 6:20-cv-00497-ADA

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE 

SUR-REPLY

PUBLIC VERSION
1 

Defendants ZTE (USA) Inc., and ZTE (TX), Inc. (collectively “ZTE” or “Defendants”) 

respectfully request that this Court deny WSOU Investments’ (“WSOU”) request for leave to file 

a sur-reply on venue. See Dkt. 89.1 WSOU fails to address appropriate factors for granting such 

relief—the delay and the prejudice—and in fact, both of these factors weigh against the requested 

relief. In particular, WSOU fails to justify its own delay regarding the requested relief, and further, 

WSOU fails to account for the undue prejudice to Defendants born from WSOU’s own activities. 

As such, both factors reinforce each other and convincingly weigh against the requested sur-reply. 

It is common, when considering leave for additional motions, for district courts to consider 

(A) the delay in the sought relief, and (B) the prejudice to the nonmovant. For instance, the Federal

Circuit has found that “[o]ne major factor which the trial court should take into account is the 

possibility of prejudice to the adverse party,” while “[a]nother element bearing on the trial court’s 

discretion is the passage of time.”2 And, these two factors are also connected, such that the “risk 

of substantial prejudice increases with the passage of time.” Id. Further, the actions—or rather the 

inactions—of the movant may (and here, do) weigh against grant of the requested relief at issue.

3

Here, it is just for this Court to deny WSOU’s request for leave to file a sur-reply brief. In 

fact, as noted below, WSOU is responsible for the events at issue, which allowed a 20-to-5 page 

briefing advantage in favor of WSOU, and WSOU now attempts to gain an additional five-page 

advantage, without agreeing to reciprocity for Defendants. WSOU ignores and unjustly silences 

Defendants on these matters, as such, it is appropriate for this Court to silence WSOU in kind.4

1 Citations are to case nos. -00487 through -00497; specific cites reference case no. -00487. 

2 Tenneco Resins, Inc. v. Reeves Bros., 752 F.2d 630, 634 (Fed. Cir. 1985).

3 Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 327 n.1 (1971) (leave was properly denied 

when party had notice and ample opportunity to provide notice, but it had failed to do so).

4 This is not the first time that WSOU improperly sought to silence Defendants. WSOU sought to silence 

Defendants’ Motion to Transfer by arguing against precedent and that its amended complaints did not moot 

the original complaints, nor moot the original Motion to Dismiss/Transfer briefing. See Dkt. 38; see also In 

re Samsung Electronics Co., Ltd., slip op. 21-139, p. 7 (Fed. Cir. June 30, 2021) (“Once the respondents 

PUBLIC VERSION
2 

Alternatively, at the least, Defendants respectfully request a sur-sur-reply brief of equal length.

I. The Alleged Delay At Issue, for Production of , is of 

WSOU’s Own Making and Should Thus Weigh Against the Requested Relief

WSOU failed to timely produce the subpoenaed documents at issue (including 

), and refused to provide any explanation for any third-party 

production—such as the delayed production or even context of production. As such, WSOU’s own 

inability and refusal to properly communicate updates on third-party production raises concerns 

about the actual date of production of third-party discovery, and whether WSOU created the delay 

it now uses as a basis for seeking a sur-reply. See Zenith Radio, 401 U.S. 321, 327 n.1 (1971).

WSOU alleges that it “did not receive until it was produced 

by after WSOU filed its response.” Dkt. 89, p. 3. WSOU, however, fails to offer proof of 

this statement, fails to offer proof of the timing of the third-party production, and further refuses 

to provide the communications between WSOU and 5 regarding this production and its

timing. WSOU should be required to produce these third-party communications—after all, what 

is good for the goose is good for the gander.6 Defendants likewise did not timely receive thirdfiled their amended complaints, the original complaints were ‘dead letter[s]’ and ‘no longer perform[ed] 

any function in the case[s].”) On the same day, WSOU filed the amended complaints and oppositions to 

the original transfer briefing. See Dkts. 36, 37, and 42. After a meet-and-confer, WSOU refused to agree to 

extensions to the new transfer briefing because, as WSOU argued, the original briefing was not mooted

(which was a legal fallacy). See Dkt. 41. WSOU further sought to strike Defendants’ renewed Motion to 

Transfer. See Dec. 11, 2020 Court Order. Since then, WSOU has flipped-flopped on this mooting issue to

which ever position is best suited for WSOU (including silencing Defendants’ renewed Transfer Motion).

5 Defendants also seek the communications between WSOU and delayed thirdparty production. WSOU likewise continues to refuse to provide any of the communications.

6 In contrast, WSOU has repeatedly accused Defendants of withholding communications with third-parties 

regarding WSOU’s venue subpoenas. See also Dkt. 89, Ex. A, p. 2 (WSOU baselessly arguing that “ZTE 

has consistently concealed relevant information relating to venue”). For each accusation, WSOU has failed 

to provide its basis for making the improper allegation, and for each accusation, Defendants provided the 

communications disproving WSOU’s allegations. WSOU first accused Defendants of “stonewalling” thirdparty production of sealed filings from 2017-2019 cases in sister EDTX/NDTX districts. See WSOU’s 

positions for May 11, 2021 venue hearing (as submitted by WSOU on April 28, 2021). WSOU’s accusations 

that Defendants were “obstructing” third-party production rang hollow, however when Defendants 

provided the communications with the third-parties, which disproved the false allegations—clearly 

PUBLIC VERSION
3 

party production from —from either or WSOU. In fact, Defendants sought clarification 

on this topic before filing their reply brief on June 25, 2021, but WSOU ignored the request for 

clarification. WSOU did not actually respond until June 30, 2021—well after Defendants’ reply 

filing—by finally admitting that the “ . 

To this date, WSOU has never provided the actual production date (to Defendants or this Court). 

II. The ZTE Defendants, Not WSOU, are Prejudiced from WSOU’s Actions/Inactions 

As noted above, WSOU failed to timely produce all third-party productions to Defendants

in these cases, including the document at issue and WSOU 

compounded the issue by refusing to confirm third-party production before Defendants’ reply 

filing on June 25, 2021. As such, Defendants were prejudiced and unable to brief this 

production. Now, after failing to timely provide Defendants with clarification prior to the June 

25th filing, WSOU ironically seeks to silence Defendants entirely, on this very matter and opposes 

any sur-sur-reply briefing for Defendants. This is improper and an extreme prejudice against ZTE. 

In fact, to-date, for several issues first raised in WSOU’s response brief, WSOU 

unilaterally elected to exceed the briefing limits and created a gross briefing imbalance between 

parties. WSOU seeks to extrapolate that imbalance further by now seeking more pages for a surreply. This briefing limitation imbalance was caused by WSOU alone, without Court approval. 

For instance, WSOU’s June 18, 2021 response brief is nearly 20 pages, and now WSOU seeks 5 

more pages of sur-reply briefing—where in contrast, for these new issues, Defendants only had 5 

pages in its reply briefing. Defendants requested an additional one-page of briefing on June 24, 

demonstrating Defendants approved the production (in fact, Defendants approved before WSOU first levied 

its baseless allegations). Next, without basis, WSOU accused Defendants of “coercing” third-party 

from producing documents for its respective subpoena. See e.g., WSOU June 18, 2021 electronic 

communication to this Court. Again, Defendants provided the communications with third-party —

clearly demonstrating that Defendants approved the production. Defendants have produced third-party 

communications, whereas, WSOU refused to do so in turn.

PUBLIC VERSION
4 

2021 to address this misbalance, yet WSOU ignored this request. Defendants further requested an 

equivalent sur-reply to respond in kind to WSOU’s request herein, and WSOU refused to cooperate 

on Defendants’ request. In total effect, WSOU seeks 25 pages to Defendants’ five pages of briefing.

This is not the first time WSOU took an unfair, improper, or inconsistent position regarding 

this Motion to Dismiss briefing and the associated venue discovery. Nevertheless, the Court should 

not agree to WSOU’s request (or at least not without granting a sur-sur-reply for Defendants). 

III. The Document At Issue (“ ”) Does Not Warrant the Requested 

Relief; Nevertheless, The Court Should Grant Equivalent Briefing for Defendants

It is well established that WSOU carries the burden of proving venue is appropriate here 

(it is not),7 and rather than carry it, WSOU seeks to shift the burden to Defendants and force them 

to prove a negative. This is improper. Nevertheless, supports—not 

contradicts the ZTE Defendants—per the positions and deposition testimony of ZTE. For this 

reason, the Court should either deny WSOU’s requested relief, or alternatively, grant Defendants 

equivalent sur-sur-reply briefing to address these points.

WSOU erroneously alleges that the “ ” contradicts “

. Defendants, however, 

testified that “

7 In re ZTE (USA) Inc., 890 F.3d 1008, 1013 (Fed. Cir. 2018) (holding that “Federal Circuit law governs 

the placement of the burden of persuasion on the propriety of venue under § 1400(b)” and that “the Plaintiff 

bears the burden of establishing proper venue”) (emphasis added).

PUBLIC VERSION
5 

.

. Yet, that is all – a mere allegation, without support. WSOU 

makes no valid argument that “ contradicts Defendants’ testimony 

Lastly, WSOU erroneously argues that 

The facts, however, indicate 

otherwise. It is public knowledge that Gogo was removing ZTE technology from its networks in 

2019.9

.

For these reasons, the Court should either deny WSOU’s requested relief, or alternatively, 

grant Defendants equivalent sur-sur-reply briefing to address these points. And, as to the ultimate 

issue – that is, if the ZTE Defendants have a place of business in the WDTX, WSOU has not met 

its burden and, other than conjecture, has not presented any information supporting such a theory. 

8 See also Koss Corporation v. PEAG LLC, 6:20-cv-00662-ADA (W.D. Tex. June 22, 2021) (J. Albright 

finding venue improper where no defendant employees conduct business in the district).

9 See https://www.lightreading.com/mobile/5g/another-5g-provider-gogo-takes-a-seat-at-the-cool-kidstable/d/d-id/751821 (Gogo stating that it is “not using ZTE for this [5G] network”); see also

https://www.fiercewireless.com/wireless/gogo-moves-full-steam-ahead-5g-but-not-zte (Gogo “replacing 

ZTE” with new networking vendor).

PUBLIC VERSION
6 

DATED: July 7, 2021 Respectfully submitted,

/s/Lionel M. Lavenue 

Lionel M. Lavenue 

Virginia Bar No. 49,005

lionel.lavenue@finnegan.com 

FINNEGAN, HENDERSON, FARABOW, 

GARRETT & DUNNER, LLP

1875 Explorer Street, Suite 800

Reston, VA 20190

Phone: (571) 203-2700 

Fax: (202) 408-4400 

Attorney for Defendants, 

ZTE Corporation

ZTE (USA), Inc.

ZTE (TX), Inc.

PUBLIC VERSION
7 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s 

CM/ECF system and electronic mail on July 7, 2021. 

/s/Lionel M. Lavenue 

Lionel M. Lavenue

PUBLIC VERSION