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. 

MICROSOFT CORPORATION

Defendant.

CASE NO. 6:20-CV-00454-ADA

CASE NO. 6:20-CV-00457-ADA

CASE NO. 6:20-CV-00460-ADA

CASE NO. 6:20-CV-00461-ADA

CASE NO. 6:20-CV-00463-ADA

CASE NO. 6:20-CV-00464-ADA

CASE NO. 6:20-CV-00465-ADA

JURY TRIAL DEMANDED 

PLAINTIFF BRAZOS LICENSING AND DEVELOPMENT’S SURREPLY IN 

OPPOSITION TO DEFENDANT MICROSOFT CORPORATION’S MOTION FOR 

RECONSIDERATION OF ITS MOTION TO TRANSFER VENUE TO AUSTIN 

DIVISION 

PUBLIC VERSION

Case 6:20-cv-00457-ADA Document 109 Filed 04/19/22 Page 1 of 7
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ARGUMENT

Microsoft filed an improper motion for reconsideration eleven months after this Court 

denied its motion to transfer venue arguing that it could meet the standard for reconsideration 

under Federal Rule of Civil Procedure 59(e) articulated in In re Benjamin Moore & Co., 318 F.3d 

626, 629 (5th Cir. 2002). See Mot. for Recons. of Mot. to Transfer Venue (“Mot. for Recons.”)

(Mar. 18, 2022), Dkt. -454 ECF No. 123 at 1, 8 (citing Benjamin Moore, 318 F.3d at 629). That 

standard requires the movant to show: “(1) an intervening change in controlling law; (2) the 

availability of new evidence not previously available; or (3) the need to correct a clear error of law 

or prevent manifest injustice.” Benjamin Moore, 318 F.3d at 629. 

Microsoft’s belated attempt relied on (1) recent Federal Circuit opinions that it claims 

support transfer to the Austin Division under the 28 U.S.C. § 1404(a) factors; and (2) “new 

evidence” that purportedly shows the transferee forum to be “clearly more convenient” than 

Brazos’ original forum choice. Microsoft could not meet that standard. First, the opinions relied 

on did not shift the legal landscape as explained in Brazos’ opposition. Second, the new evidence 

is not new, could have been presented many months ago, and does not alter the weighing of the 

§ 1404(a) factors. 

Recognizing that its reconsideration efforts were misdirected from the start, Microsoft

pivots on reply and now claims for the first time that it brought the motion pursuant to Federal 

Rule of Civil Procedure 54(b), which provides that interlocutory orders may be “revised at any 

time before the entry of a judgment adjudicating all the claims and all the parties' rights and 

liabilities.” Fed. R. Civ. P. 54(b). See Reply in Supp. of Mot. for Recons. of Mot. to Transfer 

Venue (“Reply”) (April 8, 2022), Dkt. -454 ECF No. 130 at 1, 2 (citing Rule 54(b)). Microsoft 

also cites Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017), for the first time to 

advocate that a different and more lenient standard under Rule 54(b) should apply. Reply at 1. 

Case 6:20-cv-00457-ADA Document 109 Filed 04/19/22 Page 2 of 7
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Brazos objects to Microsoft’s shifting sands-approach as it grasps for bases to undo this 

Court’s prior order. But it does not change the result. Under Rule 54(b), this Court is permitted 

to reverse its interlocutory order “for any reason it deems sufficient, even in the absence of new 

evidence or an intervening change in or clarification of the substantive law.” 864 F.3d at 336 

(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)). 

Nonetheless:

So long as courts recognize that they have the discretion to grant 

reconsideration even in the absence of any such showing, the 

flexible approach permits them to require a showing of one of the 

following factors to justify reconsideration: an intervening change 

in law; availability of previously unavailable new evidence; or a 

need to correct a clear legal error or to prevent manifest 

injustice. In many circumstances, the absence of such showing 

would exhibit no injustice to denying reconsideration. 

United States v. 89.9270303 Bitcoins, No. SA-18-CV-0998-JKP, 2021 WL 5203337, at *1 (W.D. 

Tex. Nov. 8, 2021) (emphasis added); see also S.L.V. v. Rosen, No. SA-21-CV-0017-JKP, 2021 

WL 243442, at *5 (W.D. Tex. Jan. 25, 2021) (same). 

The same considerations underlying Rule 59 also inform a court’s analysis of a motion for 

reconsideration under Rule 54(b). See Goosehead Ins. Agency, LLC v. Williams Ins. & Consulting, 

Inc., 533 F. Supp. 3d 367, 380 (N.D. Tex. 2020) (explaining that the “guideposts [provided under 

Federal Rules of Civil Procedure 59 and 60] are informative to the Court’s reconsideration of a 

pre-final-judgment order”); Fishman Jackson PLLC v. Israely, 180 F. Supp. 3d 476, 481 (N.D. 

Tex. 2016) (“Even though the standard for evaluating a motion to reconsider under Rule 54(b) 

would appear to be less exacting than that imposed by Rules 59 and 60, considerations similar to 

those under Rules 59 and 60 inform the court’s analysis.”) (cleaned up). 

Case 6:20-cv-00457-ADA Document 109 Filed 04/19/22 Page 3 of 7
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Put simply, the factors Microsoft advanced as the bases for reconsideration of its original 

motion are the same ones that demonstrate why Microsoft’s motion fails even under a discretionary 

standard. None of Microsoft’s arguments provide a compelling reason for this Court to revisit its 

now nearly year-old order. 

First, there has been neither a clarification of substantive law nor an intervening change in 

controlling law. The “recently-updated Federal Circuit guidance” cited by Microsoft in its reply, 

see Reply at 2, does not clarify, but rather restates long-standing Federal Circuit law. Nowhere in 

In re Netflix, for example, does the Federal Circuit claim to clarify substantive law. No. 22-110, 

2022 WL 167470, at *2 (Fed. Cir. Jan. 19, 2022). Rather, the Federal Circuit states that it “ha[s] 

explained” that convenience of witnesses is the most important factor in the transfer analysis, citing 

to the thirteen-year-old case, In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009). Netflix, 

2022 WL 167470, at *2. 

Second, the central inquiry under 28 U.S.C. § 1404(a) remains unchanged even when 

evaluated under a discretionary standard. The purportedly new facts uncovered during discovery 

do not “clearly favor” Austin under the § 1404(a) analysis. See Opp’n to Mtn. for Recons. of Mtn. 

to Transfer Venue (“Opp’n”) (April 1, 2022), Dkt. -454 ECF No. 126 at 8-15. The local-interest 

factor, which Microsoft spills most ink over in its reply, does not clearly favor Austin. It remains 

the case that there are no employees who have worked on the design, development, and marketing 

of the accused products and services in Austin. As the exhibits cited to by Brazos in its opposition 

illustrate, Brazos is headquartered in Waco and has rooted itself in Waco. See, e.g., Decl. of 

Kalpana Srinivasan in Supp. of Opp’n to Mot. for Recons. (“Srinivasan Decl.”), Dkt. -454 ECF. 

No. 127, Ex. 2 at 16:14-23 (explaining that Waco relies on a Waco-based company for document 

maintenance and storage); Srinivasan Decl. Ex. 3 at 125:22-25 (confirming that two of five Brazos 

Case 6:20-cv-00457-ADA Document 109 Filed 04/19/22 Page 4 of 7
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employees work in Waco at Brazos’ headquarters), 128:3–7 (Hogan’s testimony that Brazos is 

engaged in ongoing conversations with Baylor University entities about how Brazos could lend 

itself “as experts in the intellectual property space”), 129:15–24 (explaining that there were 

proposals to work with Startup Waco until COVID interrupted those plans); Srinivasan Decl. Ex. 

7 (identifying presentation given by Brazos’ Managing Director Matt Hogan at Baylor Law on 

filing and prosecuting patents on October 19, 2021). 

Finally, the discretion afforded to the Court under Rule 54(b) does not make Microsoft’s 

motion for reconsideration timely for the reasons identified by Brazos in its opposition. See Opp’n 

at 2-6. Mr. Hogan was deposed in September 2021 and Microsoft’s reconsideration motion came 

six months later. See Opp’n at 4. That Microsoft identified Mr. Shanus and Mr. Etchegoyen as 

residing in Los Angeles and Hawaii respectively in its original motion to transfer venue remains 

unchanged. See id. The debate over whether Skype for Business is accused is inconsequential: 

Microsoft at no stage of this litigation represented that any Skype or Teams personnel related to 

these specific cases might be in Texas. Applying a discretionary lens here does nothing to change 

the facts underlying the timeliness analysis. See Turk v. Pershing LLC, No. 3:09-CV-2199-N, 

2019 WL 13074701, at *1 (N.D. Tex. Aug. 1, 2019) (“[A] district court's broad discretion under 

rule 54(b) must be exercised sparingly in order to forestall the perpetual reexamination of orders 

and the resulting burdens and delays.”). 

CONCLUSION

This is not the rare case where the Court should exercise its discretion to reconsider and 

grant Microsoft’s now year-old transfer motion. Microsoft’s motion should be denied. 

Case 6:20-cv-00457-ADA Document 109 Filed 04/19/22 Page 5 of 7
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Dated: April 13, 2022 Respectfully submitted,

SUSMAN GODFREY L.L.P.

 By: /s/ Kalpana Srinivasan 

Kalpana Srinivasan

California Bar No. 237460 

Anna Catherine Coll (pro hac vice) 

California Bar No. 337548 

1900 Avenue of the Stars, 14th Floor 

Los Angeles, California 90067-6029 

Telephone: (310) 789-3100 

Fax: (310) 789-3150 

ksrinivasan@susmangodfrey.com

acoll@susmangodfrey.com 

J. Hoke Peacock III

Texas Bar No. 15673980 

Max L. Tribble, Jr. 

Texas Bar No. 2021395 

Shawn Blackburn (pro hac vice) 

Texas Bar No. 24089989 

1000 Louisiana Street, Suite 5100 

Houston, Texas 77002-5096 

Telephone: (713) 651-9366 

Fax: (713) 654-6666 

tpeacock@susmangodfrey.com 

mtribble@susmangodfrey.com

sblackburn@susmangodfrey.com 

Elizabeth Aronson (pro hac vice)

New York Bar No. 5704432 

1301 Avenue of the Americas, 32nd Floor 

New York, New York 10019 

Telephone: (212) 336-8330 

Fax: (212) 336-8340 

baronson@susmangodfrey.com

Mark D. Siegmund 

State Bar No. 24117055 

STECKLER WAYNE CHERRY & LOVE, 

PLLC

8416 Old McGregor Road 

Waco, Texas 76712 

Telephone: (254) 651-3690 

Facsimile: (254) 651-3689 

mark@swclaw.com

Case 6:20-cv-00457-ADA Document 109 Filed 04/19/22 Page 6 of 7
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COUNSEL FOR PLAINTIFF WSOU 

INVESTMENTS, LLC D/B/A BRAZOS 

LICENSING AND DEVELOPMENT

CERTIFICATE OF SERVICE

The undersigned certifies that on April 13, 2022, I electronically filed this document with 

the Clerk of Court via the Court’s CM/ECF system which will send notification of such filing to 

all counsel of record, all of whom have consented to electronic service in this action. 

/s/ Kalpana Srinivasan 

Kalpana Srinivasan

Counsel for Plaintiff 

Case 6:20-cv-00457-ADA Document 109 Filed 04/19/22 Page 7 of 7