Hearing on M&A’s Motion to DismCase No. 2:23-cv-00349, Autoscribe Corp. v. Repay Holdings Corp., et al.

July 17, 2024

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 1 of 30 PageID #: 2
Autoscribe has agreed to drop the holding co

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response (excerpted and annotated) 

Repay 

Holdings 

Corp.

Repay 

Holdings, 

LLC

M&A 

Ventures, 

LLC 

Repay 

Mngmn

Servs. L

CDT 

Techs. Ltd. 

Dismissed Parties

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 2 of 30 PageID #: 2
§ 1406 Improper Venue

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 3 of 30 PageID #: 2
Relationship between entities 

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 4 of 30 PageID #: 2
Relationship between entities 

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response (excerpted and annotated) 

Repay 

Holdings 

Corp.

Repay 

Holdings, 

LLC

M&A 

Ventures, 

LLC 

Repay 

Mngmn

Servs. L

CDT 

Techs. Ltd. 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 5 of 30 PageID #: 2
Relationship between entities 

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response (excerpted and annotated) 

Repay 

Holdings 

Corp.

Repay 

Holdings, 

LLC

M&A 

Ventures, 

LLC 

Repay 

Mngmn

Servs. L

CDT 

Techs. Ltd. 

Named Defendant

• No EDTX location• No TX employees • Improper venue

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 6 of 30 PageID #: 2
Relationship between entities 

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response (excerpted and annotated) 

Repay 

Holdings 

Corp.

Repay 

Holdings, 

LLC

M&A 

Ventures, 

LLC 

Repay 

Mngmn

Servs. L

CDT 

Techs. Ltd. 

Named Defendant

Office in 

EDTX

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 7 of 30 PageID #: 2
EDTX location is threshold issue 

• Autoscribe must demonstrate that M&A has a location in the East

of Texas. It only points to an office in The Colony leased by CDT. 

• Autoscribe bears the burden of proof to demonstrate proper venu

D&M Leasing Dallas, No. 4:20-cv-00309, 2020 WL 4335733, at Tex. July 28, 2020). 

• Proper venue requires a place of business in the District. That pla

business must be “of the defendant.” In re Cray, 871 F.3d 1355, Cir. 2017). 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 8 of 30 PageID #: 2
EDTX location is threshold issue 

Is the office in The Colony a regular and established place of business of M&A Ventures, LLC? 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 9 of 30 PageID #: 2
When is a location “of the defendant”?

• In re Cray lists these relevant considerations:

• “whether the defendant owns or leases the place, or exercises 

attributes of possession or control over the place”; 

• “whether the defendant conditioned employment on an emplo

continued residence in the district or the storing of materials athe district so that they can be distributed or sold from that pla

• “representations that it has a place of business in the district. 

mere fact that a defendant has advertised that it has a place or has even set up an office is not sufficient; the defendant mengage in business from that location.”

In re Cray, 871 F.3d 1355, 1363-64 (Fed. Cir. 2017). 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 10 of 30 PageID #: 2
CDT leases the only place of business in EDTX

Source: Dkt. 47-3, Ex. A to Repay’s Reply (excerpted and annotated) 

No argument by Autoscribe that M&A “exercises other attribupossession or control over the place.”

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 11 of 30 PageID #: 2
Relationship between entities 

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response (excerpted and annotated) 

Repay 

Holdings 

Corp.

Repay 

Holdings, 

LLC

M&A 

Ventures, 

LLC 

Repay 

Mngmn

Servs. L

CDT 

Techs. Ltd. 

Named Defendant

Office in 

EDTX

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 12 of 30 PageID #: 2
When is a location “of the defendant”? 

In re Cray, 871 F.3d 1355, 1363-64 (Fed. Cir. 2017). 

X

• In re Cray lists these relevant considerations:

• “whether the defendant owns or leases the place, or exercises 

attributes of possession or control over the place”; 

• “whether the defendant conditioned employment on an emplo

continued residence in the district or the storing of materials athe district so that they can be distributed or sold from that pla

• “representations that it has a place of business in the district. 

mere fact that a defendant has advertised that it has a place or has even set up an office is not sufficient; the defendant mengage in business from that location.”

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 13 of 30 PageID #: 2
When is a location “of the defendant”? 

In re Cray, 871 F.3d 1355, 1363-64 (Fed. Cir. 2017). 

XX

• In re Cray lists these relevant considerations:

• “whether the defendant owns or leases the place, or exercises 

attributes of possession or control over the place”; 

• “whether the defendant conditioned employment on an emplo

continued residence in the district or the storing of materials athe district so that they can be distributed or sold from that pla

• “representations that it has a place of business in the district. 

mere fact that a defendant has advertised that it has a place or has even set up an office is not sufficient; the defendant mengage in business from that location.”

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 14 of 30 PageID #: 2
Repay sign does not prove The Colony office 

“The court finds that the use of the generic name Medtronic on the extebuilding . . . [is] insufficient to estabvenue in this district is proper for thclaims alleged against Medtronic, Inaction.” Bd. of Regents, The UniversSystem v. Medtronic, PLC, Cause No0942-LY, 2018 WL 4179080, at *2 July 19, 2018). 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 15 of 30 PageID #: 2
Repay’s SEC filings do not prove The Colony oM&A’s

RepaCorpare cand inforits su

Source: Dkt. 38-14, Ex. M to Autoscribe’s Response (excerpted and annotated) 

“None of the public filings cited by Andra demonstrate LBI's control, becdocuments covering all of LBI's brands. The documents’ use of ‘we’ doe‘we’ means LBI specifically, but that ‘we’ could include the individual sulike Stores.” Andra Grp., LP v. Victoria's Secret Stores, L.L.C., 6 F.4th 12Cir. 2021).

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 16 of 30 PageID #: 2
PCI compliance does not prove The Colony ofM&A’s

Source: Dkt. 38-21, Ex. T to Autoscribe’s Response (excerpted and annotated) 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 17 of 30 PageID #: 2
When is a location “of the defendant”? 

In re Cray, 871 F.3d 1355, 1363-64 (Fed. Cir. 2017). 

XX

X

• In re Cray lists these relevant considerations:

• “whether the defendant owns or leases the place, or exercises 

attributes of possession or control over the place”; 

• “whether the defendant conditioned employment on an emplo

continued residence in the district or the storing of materials athe district so that they can be distributed or sold from that pla

• “representations that it has a place of business in the district. 

mere fact that a defendant has advertised that it has a place or has even set up an office is not sufficient; the defendant mengage in business from that location.”

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 18 of 30 PageID #: 2
“Place of business” requires employees or ag

• “[A] ‘place of business’ generally requires an employee or agent 

defendant to be conducting business at that place.” In re Googl

F.3d 1338, 1344 (Fed. Cir. 2020).

• All employees in The Colony are employed by Repay Manage

Services, LLC. M&A does not have employees. Dkt. 64-5 at 9

• No argument by Autoscribe that Repay Management Service

employees are agents of M&A. 

• No evidence of any M&A tasks here. Performance of isolated tas

behalf of the Defendant does not create venue absent showing See Andra Grp., LP v. Victoria's Secret Stores, L.L.C., 6 F.4th 128

(Fed. Cir. 2021). 

Source: Dkt. 64-5 at 9, Ex. E to M&A’s Motion to Dismiss 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 19 of 30 PageID #: 2
Relationship between entities 

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response (excerpted and annotated) 

Repay 

Holdings 

Corp.

Repay 

Holdings, 

LLC

M&A 

Ventures, 

LLC 

Repay 

Mngmn

Servs. L

CDT 

Techs. Ltd. 

Named Defendant

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 20 of 30 PageID #: 2
“Place of business” requires employees or ag

Source: Dkt. 64-5 at 9, Ex. E to M&A’s Motion to Dismiss 

Alleged M&A Activity Reality

• No evidence that any M&A documents are printed •

The Colony office has mail facilities.

• No evidence this person was hired or does work f

Colony. 

•

A job posting for a software developer

• No evidence of a single employee actually perform

behalf of M&A

••

Employees who are “likely to pertain (at least in part) to M&A”

• The fact that it interfaces with the Gateway does n

becomes an M&A product or that The Colony offic

Repay’s LIFT product is not sold by M&A

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 21 of 30 PageID #: 2
Corporate relative’s office does not create ve

• But where related companies have maintained corporate sepa

the place of business of one corporation is not imputed to the venue purposes. See Andra Grp., LP v. Victoria's Secret Stores, 

F.4th 1283, 1289 (Fed. Cir. 2021).

• Autoscribe has a “heavy burden” to demonstrate alter ego app

of Tulane Educ. Fund. v. Ipsen, S.A., 450 F. App’x 326, 331 (5th 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 22 of 30 PageID #: 2
Autoscribe must show lack of corporate sepabetween three entities

Source: Dkt. 38-2, Ex. A to Autoscribe’s Response (excerpted and annotated) 

Repay 

Holdings 

Corp.

Repay 

Holdings, 

LLC

M&A 

Ventures, 

LLC 

Repay 

Mngmn

Servs. L

CDT 

Techs. Ltd. 

**No argument that M&A is alteManagement S

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 23 of 30 PageID #: 2
Defendants maintain corporate separateness 

• Autoscribe waived the right to rely on alter ego by raising it for th

time in its sur-reply (Dkt. 54). Dugger v. Stephen F. Austin State 

F. Supp. 3d 938, 957 (E.D. Tex. 2017).

• Activities consistent with parent/subsidiary relationship should 

rise to a finding of an alter ego. U.S. v. Bestfoods, 524 U.S. 51, 7

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 24 of 30 PageID #: 2
Defendants maintain corporate separateness 

• No evidence of the following factors between CDT and M&A:

• financing of one entity by the controlling entity; (Dkt. 67-1 at ¶ 13)• causation of incorporation of one entity by the controlling entity; (Dkt. 67• operation of the subsidiary entity with grossly inadequate capital; (Dkt. 6• the controlling entity pays salaries and expenses of the other entity; (Dkt

13)

• entity receives no business except that given by the controlling entity; (Dk

14)

• daily operations of the two corporations are not kept separate; (Dkt. 67-1 • the entities do not observe corporate formalities (Dkt. 67-1 at ¶¶ 7-10)

Source: Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 447 F.3d 411, 418 (5th Cir. 2006).

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 25 of 30 PageID #: 2
§ 1404 Transfer for 

Convenience

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 26 of 30 PageID #: 2
Suit could be brought in the N.D. Georgia 

• M&A resides in Georgia and meets the first prong of § 1404 

• Organized under Georgia law• Headquartered in Atlanta, Georgia 

Source: Dkt. 69-1, ¶ 5 (Declaration of Tyler Dempsey). 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 27 of 30 PageID #: 2
Convenience of witnesses weighs in favor of 

• M&A has identified 8 witnesses in Georgia:

• David Guthrie, CTO • Srinimukesh Manickam, VP of Engineering• Jake Moore, VP of Corp. Development• Tim Murphy, CFO• Christina Bracken, VP, Revenue accounting• Kristen Hoyman, VP of Marketing• Megan Carswell, Marketing Manager• Wes Hull, knowledge of tokenization 

• M&A has identified 7 more o

•Phoenix (VA)•Jesse Parker (AL)•Robert Pollin (inventor, MD)•Brian Downey (inventor, VA)•Sean Fleming (inventor, MD•Johnathan King (patent pro•Autoscribe employees (FL)*

• There are only three potential M&A witnesses in Texas:

• Eben Esterhuyse• Matt Mills• Allen Craig 

Source: Dkts. 47-4, 47-5, 67-1, 72-15, 81-1 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 28 of 30 PageID #: 2
Parties’ interactions in Georgia 

Source: Dkt. 15-3

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 29 of 30 PageID #: 2
Practical problems are neutral 

• The cases consolidated with this one have settled.• Autoscribe has three suits pending in the S.D.Tex. and another 

different schedule in this District. Transfer would not increase problems. 

Autoscribe Corporation v. Fortis Payment Systems, LLC 2-23-cv-00364 Autoscribe Corporation v. Payment Savvy, LLC 2-23-cv-00390 

Autoscribe Corporation v. Tsevo, LLC et al 3-24-cv-00076 

Autoscribe Corporation v. PCI Booking Limited 3-24-cv-00081 

Autoscribe Corporation v. Paysafe Limited et al 3-24-cv-00104 

Autoscribe Corporation v. Nuvei Corporation et al 2-24-cv-00325 

Case 2:23-cv-00349-JRG Document 96 Filed 07/26/24 Page 30 of 30 PageID #: 2