IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

AGIS SOFTWARE DEVELOPMENT §

LLC, §
§
Plaintiff, § Case No. 2:21-cv-00072-JRG-RSP
§ (LEAD CASE)
v. §
§
T-MOBILE USA, INC. and T-MOBILE §
US, INC., §
§
Case No. 2:21-cv-00024-JRG-RSP
LYFT, INC §
(MEMBER CASE)
§
Defendants. §

REPORT AND RECOMMENDATION

Before the Court is Defendant Lyft, Inc.’s (“Lyft”) Motion to Dismiss for Improper Venue

(“Lyft’s MTD”). Dkt. No. 30. Lyft’s Motion requests the Court to dismiss the above-captioned

matter pursuant to 28 U.S.C. § 1406(a) or, alternatively, to transfer this case to the Northern

District of California or “another district where venue is proper as to Lyft.” Id. at 2.

I. BACKGROUND

On March 3, 2021, AGIS filed its complaint against Defendants T-Mobile USA, Inc. and

T-Mobile US, Inc. Dkt. No. 1. On April 16, 2021, the Court consolidated similar actions against

Lyft, Uber, and WhatsApp with the above-captioned matter as the lead case. Dkt. No. 14. On April

27, 2021, Lyft filed the present motion, Dkt. No. 30, and the Court held an evidentiary hearing on

Lyft’s MTD on September 29, 2021. Dkt. No. 125.

II. LEGAL STANDARDS

A. Venue

A party may challenge venue by asserting that venue is improper in a responsive pleading

or by filing a motion. Fed. R. Civ. P. 12(b)(3). A court may decide whether venue is proper based
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upon “(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced

in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of

disputed facts.” Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009) (quoting Ginter

ex rel. Ballard v. Belcher, Prendergast & Laport, 536 F.3d 439, 449 (5th Cir. 2008)). Additionally,

when resolving the matter on the pleadings, the Court “must accept as true all allegations in the

complaint and resolve all conflicts in favor of the plaintiff.” Mayfield v. Sallyport Glob. Holdings,

Inc., No. 6:13-CV-459, 2014 WL 978685, at *1 (E.D. Tex. Mar. 5, 2014) (citing Ambraco,570

F.3d at 237–38).

Venue facts are to be examined as of the date the suit is filed. 1 If venue is improper, the

Court must dismiss, “or if it be in the interest of justice, transfer such case to any district or division

in which it could have been brought.” 28 U.S.C. § 1406(a); Fed. R. Civ. P. 12(b)(3).

B. Patent Venue: 28 U.S.C. § 1400(b)

In matters unique to patent law, Federal Circuit law—rather than the law of the regional

circuit—applies. In re Cray, 871 F.3d 1355, 1360 (Fed. Cir. 2017) (citing Midwest Indus., Inc. v.

Karavan Trailers, Inc., 175 F.3d 1356, 1359 (Fed. Cir. 1999)). “Section 1400(b) is unique to patent

law, and ‘constitute[s] the exclusive provision controlling venue in patent infringement

proceedings’ . . . .” Id. (quoting TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct.

1514, 1518 (2017)) (alterations in original). Thus, Federal Circuit law governs the analysis of what

§ 1400(b) requires. Id. Additionally, under § 1400(b), “upon motion by the Defendant challenging

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During the evidentiary hearing, AGIS cited In re Google, 949 F.3d 1338 (Fed. Cir. 2020) to support its argument
that venue is determined as of a time other than the time of filing. [Hearing 70, 4]. However, the footnote AGIS
cited merely demonstrates that there is a circuit split as to what time venue is determined. See In re Google, 949
F.3d at 1340 n.1. The footnote goes on to state, “We need not decide the correct standard, because the GGC servers
were present in the district both at the time the cause of action accrued and at the time the complaint was filed.” Id.
Because AGIS has not cited any binding authority that holds venue is determined at a time other than the time of
filing the complaint, this Court will follow the majority position that the time of filing suit governs venue.

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venue in a patent case, the Plaintiff bears the burden of establishing proper venue.” In re ZTE

(USA) Inc., 890 F.3d 1008, 1013 (Fed. Cir. 2018).

Turning to the language of 28 U.S.C. § 1400(b), it states: “Any civil action for patent

infringement may be brought in the judicial district where the defendant resides, or where the

defendant has committed acts of infringement and has a regular and established place of business.”

Id. Thus, under §1400(b), venue is proper: (1) “where the defendant resides” or (2) “where the

defendant has committed acts of infringement and has a regular and established place of business.”

For the purposes of § 1400(b), a domestic corporation resides only in its state of incorporation. TC

Heartland, 137 S.Ct. at 1520.

If venue is not proper based on the defendant’s residence, venue may still be proper if the

defendant has both “committed acts of infringement” and “has a regular and established place of

business” in the district. For the former, “[w]here a complaint alleges infringement, the allegations

‘satisfy the acts of infringement requirement of § 1400(b)’ ‘[a]lthough the [] allegations may be

contested.’” Seven Networks, LLC v. Google LLC, 315 F.Supp.3d 933, 942 (E.D. Tex. 2017)

(quoting Symbology Innovations, LLC v. Lego Sys., Inc., 282 F.Supp.3d 916, 928 (E.D. Va. 2017))

(alterations in original). For a regular and established place of business, Cray held that there are

three requirements: “(1) there must be a physical place in the district; (2) it must be a regular and

established place of business; and (3) it must be the place of the defendant.” Cray, 871 F.3d at

1360. When determining these requirements, the Federal Circuit has emphasized that “each case

depends on its own facts” and “no one fact is controlling.” Id. at 1362, 1366.

“[T]he first requirement is that there ‘must be a physical place in the district.’” Id. at 1362.

According to Cray, “a place [is] a building or a part of a building set apart for any purpose or

quarters of any kind from which business is conducted.” Id. (internal quotations marks omitted).

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Furthermore, “[w]hile the ‘place’ need not be a ‘fixed physical presence in the sense of a formal

office or store,’ there must still be a physical, geographical location in the district from which the

business of the defendant is carried out.” Id. (quoting In re Cordis Corp., 769 F.2d 733, 737 (Fed.

Cir. 1985)), Additionally, a “virtual space” cannot satisfy this requirement. Cray, 871 F.3d at 1362.

The second requirement is that the physical place be a regular and established place of

business. Id. “A business may be ‘regular,’ for example, if it operates in a ‘steady[,] uniform[,]

orderly[, and] methodical’ manner.” Id. (internal citations omitted) (alterations in original). In

addition to regular, the place of business must be established. Id. at 1363. “The word contains the

root ‘stable,’ indicating that the place of business is not transient. It directs that the place in

question must be ‘settle[d] certainly, or fix[ed] permanently.’” Id. Essentially, the place of business

“must for a meaningful time period be stable, established.” Id.

The third requirement is that the place, “[a]s the statute indicates, [] must be a place of the

defendant . . . . Thus, the defendant must establish or ratify the place of business.” Id. (emphasis

in the original). When considering whether a place is of the defendant, a court should consider:

“whether the defendant owns or leases the place”; “whether the defendant conditioned

employment on an employee’s continued residence in the district”; or whether the defendant does

“exercise other attributes of possession or control over the place.” Id. Another relevant

consideration is “whether the defendant lists the alleged place of business on a website, or in a

telephone or other directory; or places its name on a sign associated with or on the building itself.

. . .” Cray, 871 F.3d at 1363-64. “But, the mere fact that defendant has advertised . . . is not

sufficient.” Id. at 1364. Furthermore, a “place of business” does not require a real property

ownership or a leasehold interest in real property. In re Google LLC, 949 F.3d 1338, 1343–44

(Fed. Cir. 2020). But, “a regular and established place of business requires the regular, physical

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presence of an employee or other agent of the defendant conducting the defendant’s business at

the alleged place of business.” Id. at 1345 (internal quotations marks omitted). Finally. this

requirement is satisfied if the defendant “actually engage[s]” in business from the physical location

in the District. Intellectual Ventures II LLC v. FedEx Corp., No. 2:16-cv-980-JRG, 2017 WL

5630023, at *7 (E.D. Tex. Nov. 22, 2017).

C. Agency

“An agency relationship is a ‘fiduciary relationship that arises when one person (a

principal) manifests assent to another person (an agent) that the agent shall act on the principal’s

behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents

to act.” Google, 949 F.3d at1345 (quoting Restatement (Third) of Agency § 1.01). “The essential

elements of agency are (1) the principal’s ‘right to direct or control’ the agent’s actions, (2) ‘the

manifestation of consent by [the principal] to [the agent] that the [agent] shall act on his behalf,”

and (3) the ‘consent by the [agent] to act.’” Id. (citing Meyer v. Holley, 537 U.S. 280, 286 (2003))

(alterations in the original).

D. Transfer

If venue is not proper in a district, the district court may either dismiss, or “if it be in the

interest of justice, transfer such case to any district or division in which it could have been

brought.” 28 U.S.C. § 1406(a). “Transfer is typically considered more in the interest of justice than

dismissal.” Personal Audio, 280 F.Supp.3d at 936. When deciding where to transfer under §

1406(a), a court may consider the 28 U.S.C. § 1404(a) convenience factors. See Brooks & Baker,

LLC v. Flambeau, Inc., Case No. 2:10-cv-146-TJW-CE, 2011 WL 4591905, at *6 (E.D. Tex. Sept.

30, 2011). However, those factors do not control the § 1406(a) transfer analysis. See Uniloc USA,

Inc. v. Nutanix, Inc., Case No. 2:17-cv-00174-JRG, 2017 WL 11527109, at *5 (E.D. Tex. Dec. 6,

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2017) (“prior orders under § 1404(a) are not binding or controlling in a § 1406 transfer analysis,

which does not include the same private and public interest considerations of convenience as those

involved in a § 1404(a) analysis.”). Section § 1406(a) only requires that a district court transfer the

case to a district “in which [the case] could have been brought.” 28 U.S.C. § 1406(a).

III. ANALYSIS

A. Venue

Lyft argues that venue is not proper as to Lyft in this district because Lyft does not reside

in the district and does not have a regular and established place of business in the district. Dkt.

No. 30 at 3-4. Because Lyft, both now and at the time filing, is and was incorporated in Delaware,

id. at 3, venue is only proper if Lyft had committed acts of infringement and had a regular and

established place of business in the District at the time of filing. The acts of infringement

requirement is met by the allegations in AGIS’s complaint (Case No.: 2:21-cv-00024-JRG-RSP,

Dkt. No. 1, at ¶¶ 25-102), because the allegations satisfy the acts of infringement requirement.

Seven Networks, 315 F.Supp.3d at 942.

Thus, venue is proper if Lyft had a regular and established place of business in the District

at the time of filing. AGIS argues four alternatives that could serve as a regular and established

place of Lyft. Dkt. No. 64 at 9–16. These alternatives are: (1) Lyft offering services through

different vendors in the District, specifically an Express Drive location at a Pep Boys in Plano,

TX, (2) Lyft controlled vehicles operating in the District; (3) Lyft Mobile Services (“LMS”), and

(4) various “Pick-Up Locations” located in the District. Id. Lyft argues that each of these

alternatives fails to qualify as a regular and established place of Lyft in the District. Dkt. No. 30 at

8–18.

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 In addition to challenging the regular and established place of business requirement for all

the patents-in-suit, Lyft argues that AGIS cannot establish that Lyft has committed acts of

infringement specific to U.S. Patent 10,341,838 (“the ’838 Patent”) in the District. Id. at 5, 18–19.

AGIS argues that its pleadings are sufficient to satisfy the acts of infringement requirement at this

stage of litigation, Dkt. No. 64 at 16-20, and that Lyft’s “Motion is not the appropriate place for

the parties to litigate factual and/or claim construction issues regarding infringement.” Id. at 19.

Finally, AGIS argues that the Court should allow limited venue discovery. Id. at 20.

1. Lyft Services Through Vendors in the District

AGIS argues that Lyft’s relationship with various vendors located in the District can serve

as a regular and established place of business of Lyft. Specifically, AGIS asserts that Lyft

maintains an Express Drive location, through a partnership with Hertz Corporation and Pep Boys

Manny Moe & Jack of Delaware Inc, at 928 West Spring Creek Parkway, Plano, Texas 75023

(“Express Drive Plano”) and that this location is a “regular and established physical place of

business” in the District for Lyft. Dkt. No. 64 at 9. Lyft represents that Express Drive is a program

through which Lyft drivers may rent cars that are provided and managed by Express Drive partners

at an Express Drive site. Dkt. No. 30 at 6 (citing Dkt. No. 30-1 at ¶ 5–6). Lyft argues two

independent reasons why Express Drive Plano is not a place of Lyft under § 1400(b): (1) Lyft

stopped operating out of the location in August 2019, over a year before AGIS filed its lawsuit,

Dkt. No. 30 at 4, and (2) alternatively, Lyft contends this location cannot be a place of business of

Lyft because it has been and is currently owned by Pep Boys. Id. at 6.

For the first reason, AGIS contends that Express Drive Plano was not closed when AGIS

filed its lawsuit. According to AGIS, “Lyft’s own website offers the ‘Lyft Express Drive Plano’

as a pick-up location.” Dkt. No. 64 at 9 (citing Dkt. No. 64-3). However, Exhibit B—which AGIS

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cites to support its assertion—does not list the Express Drive Plano address nor any other Express

Drive addresses. See Dkt. No. 64-3. In contrast, Lyft cites to the Declaration of Max Loosen, a

regional director at Lyft, to support its assertion that Express Drive Plano was closed at the time

of fling. Dkt. No. 30 at 4; Dkt. No. 30-1 at ¶ 1. The Declaration of Mr. Loosen states:

Hertz operated a vehicle rental location inside of a Pep Boys located

at 928 West Spring Creek Parkway, Plano, Texas 75023 from
December 18, 2017 to August 15, 2019. This location participated
in the Express Drive program. As of August 15, 2019, this location
ceased to be an Express Drive site.

Id. at ¶ 6. Mr. Loosen again testified during the evidentiary hearing that Express Drive

Plano ceased operations in August 2019. [Hearing 40, 12-14].

When asked directly by the Court whether AGIS had any evidence that this location

continued to operate past August 2019, AGIS stated that “we have agreements between Lyft and

Pep Boys that continue through the end of 2021, . . . that state that Pep Boys is to provide Lyft

with, among other things, counter space for its employees to conduct the business . . . .” [Hearing

21, 20-24]. The agreement between Lyft and Pep Boys (“Pep Boys Agreement”) does not support

AGIS’s assertion that the Express Drive Location was open past August 2019 for multiple reasons.

First, AGIS failed to show that the Pep Boys Agreement even applied to the Express Drive Plano

location. The Pep Boys Agreement, by its own terms, only applies to “each participating location,”

Dkt. No. 157-1 at ¶ 9, and nowhere in the Pep Boys Agreement does it list a participating location

in Plano. Second, the Express Drive program at the Express Drive Plano was operated by Hertz,

not Pep Boys. Dkt. No. 30-1, at ¶ 6; Dkt. No. 157-4 at 9 (“Lyft’s use of the [Express Drive Plano]

was governed by Lyft’s agreement with the Hertz Corporation.”). Thus, the Pep Boys Agreement

does not contradict Mr. Loosen’s testimony.

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 AGIS also failed to show that the agreement between Lyft and Hertz (the “Hertz

Agreement”) applied to the Express Drive Plano location. By the terms of the Hertz Agreement, it

only requires that “Hertz shall provide Hertz Rentals to certain Lyft Driver . . . in certain territories

. . . .” Dkt. No. 157-2 at ¶ 3.1. Plano is not among the “certain territories” listed, id., and AGIS has

not put forth any evidence that the Hertz Agreement applied to the Express Drive Plano location.

Additionally, even if Plano was among the certain territories, AGIS does not show that the

Hertz Agreement is still in effect. By the terms of the agreement, “[t]he term of this Agreement

will begin on the date hereof and shall end at 12:01 AM eastern time on the second anniversary of

the date hereof (the ‘Term’) . . . .” Id. at ¶ 13.1. The “Effective Date” of the Hertz Agreement is

September 28, 2017, id. at Preamble, therefore the agreement was set to terminate on September

28, 2019. AGIS did not provide any evidence to show that the term of the Hertz Agreement was

extended past September 29, 2019, which is over a year before AGIS filed its complaint. Instead,

AGIS argued that “We [AGIS] have not seen any documentary evidence that there was a

termination” of the facility at the Express Drive Plano. [Hearing 19, 22 – 20, 2]. Here, the lack of

evidence that contradicts Lyft’s evidence cuts against AGIS because AGIS has the burden of

establishing that venue was proper at the time of filing. Because AGIS failed to introduce

contradictory evidence, the Court finds that the Express Drive Plano location was closed at the

time of filing suit.

Alternatively, AGIS argued that Lyft employees could have been at the Express Drive

Plano location after August 2019 because Mr. Loosen “did not know when the last time Lyft

employees were on the premises or when they stopped doing business there.” [Hearing 20, 13-17].

This argument is unpersuasive. Even if Lyft employees went to the Express Drive Plano location

after August 2019, AGIS fails to show how often Lyft employees went there. Thus AGIS fails to

9
establish the “regularly” portion of the second requirement under Cray. Because the Court finds

the Express Drive Plano location was closed at the time of filing, the Court does not need to address

Lyft’s alternate argument as to why the Express Drive Plano cannot be a place of business of Lyft.

AGIS next argues that other agreements with vendors in the District can serve as a basis

for venue. Specifically, AGIS argues that Lyft employees travel to vendors located in the District

whenever these vendors fail to adequately provide maintenance services that are purchased by

Lyft’s drivers through Lyft’s mobile application. Id. at [30, 3-14]. These facilities are maintained

by other businesses such as: Caliber Auto Care, NTB, Pep Boys, Firestone, Discount Tire, and

HuffHines Hyundai. Dkt. No. 157-4 at 17.

These repair facilities fail to be regular and established places of Lyft. “[A] regular and

established place of business requires the regular, physical presence of an employee or other agent

of the defendant conducting the defendant’s business at the alleged place of business.” Google,

949 F.3d at 1345. Based on AGIS’s argument, a Lyft employee is not regularly at these repair

facilities because a Lyft employee only goes to these locations in response to an issue.

Additionally, an agency argument fails because the Court finds that the relationship between these

repair facilities and Lyft is one where Lyft is a customer, not a principal.

2. Vehicles of Lyft Drivers and Lyft Mobile Services (LMS)

The vehicles of Lyft drivers and LMS, which are Lyft-owned vehicles that provide

preventative maintenance for vehicles, [Hearing 44, 2-7], are addressed together because these

alternatives fail to serve as regular and established places of business for same reason: they are not

a physical place and are not “established” as defined by Cray. AGIS argues that “Defendant does

not and cannot dispute that these vehicles are physical locations from which the business of

Defendant is conducted.” Dkt. No. 64 at 9. AGIS further asserts that the Federal Circuit has held

10
that “a fixed physical location in this district is not a prerequisite to proper venue.” Id. at 15

(quoting Cray, 871 F.3d at 1362).

AGIS misstates the law. The Federal Circuit in Cray on the page AGIS cites says:

“[a]s noted above, when determining venue, the first requirement is

that there ‘must be a physical place in the district.’ The district
court erred as a matter of law in holding that ‘a fixed physical
location in the district is not a prerequisite to proper venue.’
This interpretation impermissibly expands the statute.

Cray, 871 F.3d at 1362 (internal citation omitted). Cray defined a physical place as “a building or

a part of a building . . . .” Id. The established portion of the second requirement requires the

physical place to be “stable, indicating that the place of business is not transient.” Id. at 1363

(internal quotations marks omitted). Thus, even if a vehicle is considered a physical place under

the first requirement, which the Court holds that it is not, it fails the second requirement because a

vehicle is transient, not established.

Because the Court finds that vehicles of Lyft drivers and LMS fail under Cray, these

alternatives cannot serve as a regular and established place of Lyft in the District.

3. Pick-Up Locations in the District

For the final alternative, AGIS argues that various pick-up locations located in the District

are regular and established places of Lyft. Under this alternative, AGIS has identified the following

locations that it asserts are places of Lyft: Tyler Pounds Regional Airport (“Tyler Airport”), Dkt.

No. 64 at 14; the Flower Mound Lyft Zone (“Flower Mound”); the Highland Village Lyft Zone

(“Highland”); and the University of North Texas Zone (“UNT Zone”). Dkt No. 90 at 3. For the

Tyler Airport, AGIS asserts that Lyft controls a specific location at the Tyler Airport from which

Lyft picks up passengers. Dkt. No. 64 at 14. For Flower Mound and Highland, Lyft and the Denton

County Transportation Authority (“DCTA”) have partnered to establish “designated geofenced

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zones” where certain riders receive discounted rides through Lyft. Dkt. No. 90 at 3. Finally, Lyft

provides discounted rides on campus to UNT students around its campuses, including three

campuses located in the District: Denton, Frisco, and McKinney. Id.

All four of the identified pick-up locations fail under Cray. Beginning with the Tyler

Airport, AGIS arguably identifies a physical place; however, AGIS fails to show that (1) it is a

regular and established place of business and (2) fails to show that it is a place of Lyft. The portion

of the Tyler Airport AGIS identifies—the place where passengers could be picked up by a Lyft

driver—arguably could be considered “part of a building” under Cray, specifically part of the

terminal thereby satisfying the first requirement.

However, AGIS does not provide any evidence to show that Lyft regularly transacts

business at this portion of the Tyler Airport, and most importantly, AGIS does not provide any

evidence that shows this portion of the Tyler Airport is a place of Lyft. AGIS fails to: provide

evidence that employees are regularly physically present at the Tyler Airport; point to any signs

or markings indicating it is a place of Lyft; and provide any evidence indicating that Lyft possesses

or controls this portion of the Tyler Airport. AGIS argues that by maintaining a webpage that

instructs its drivers to “pick up at arrivals and to drop off at departures,” Lyft exhibits enough

control over this physical space to make it a place of Lyft. [Hearing 60, 7-24]. These general

instructions standing alone are not enough to establish the Tyler Airport as a place of Lyft.

Moving to Flower Mound, Highland, and UNT Zone, AGIS fails to identify a physical

place under the first requirement and fails to show that Lyft has sufficient possession or control

over these zones to make them a place of Lyft. During the evidentiary hearing, Mr. Loosen stated

that the zones were represented by “digital boundaries.” [Hearing 57, 16]. Thus, these zones are

not physical zones, but rather virtual representations of a zone for the purposes of the Lyft mobile

12
application. The sones cover substantial portions of the communities, as opposed to discrete

locations akin to a traditional cab stand. Additionally, AGIS fails to provide evidence to show that

Lyft possesses or controls these zones. AGIS attempts to argue that Lyft controls these zones by

offering lower prices, [Hearing 16, 10-18], but the fact that Lyft has a pricing arrangement with

the DCTA or UNT is not enough by itself to give Lyft sufficient possession or control over these

zones to make them places of Lyft. If AGIS could show that Lyft was given the right to exclude

its competitors from these zones or exclude competitors from specific pick-up locations within the

zones, both of these would be relevant indications of possession or control. In sum, all of the

identified pick-up locations fail under Cray.

4. Conclusion as to Venue

All four alternatives—vendor locations, LMS, vehicles controlled by Lyft, and pick-up

locations—either fail as matter of law under Cray or lack factual support in the record. The Court

finds it inappropriate to order further venue discovery, at this late stage, beyond that already

conducted because AGIS has not made a sufficiently particularized showing of need. See Blitzsafe

Texas LLC v. Mitsubishi Elec. Corp., No. 2:17-cv-00430-JRG, 2019 WL 2210686, at *3 (E.D.

Tex. May 22, 2019) (quoting Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir.

2000)). Furthermore, the Court does not need to analyze whether AGIS sufficiently pleaded the

“acts of infringement” requirement for the ’838 because all of the alternatives for a regular and

established place of business failed. All that is left to analyze is whether the case against Lyft

should be dismissed or transferred.

B. Transfer

Because venue is improper in this District, Lyft requests the Court to either dismiss, or

alternatively, transfer this case to the Northern District of California or “another district in which

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venue is proper as to Lyft.” Dkt. No. 30 at 2. AGIS requests transfer to the Western District of

Texas in the event the Court finds venue improper, to which Lyft objects. Dkt. No. 64 at 21; No.

87 at 5. Since the parties disagree about an appropriate venue for transfer, and the record has not

been fully developed on the most appropriate other venue, the Court concludes that dismissal

without prejudice is the most appropriate course.

C. CONCLUSION

AGIS has failed to establish that venue is proper under 28 U.S.C. § 1400(b) as to Lyft;

therefore, under 28 U.S.C. § 1406(a), this case as to Lyft (C.A. No. 2:21-cv-024) should be

dismissed without prejudice. Accordingly, it is recommended that Defendant Lyft’s Motion

(Dkt. No. 30) be GRANTED..

.
A party’s failure to file written objections to the findings, conclusions, and

recommendations contained in this report within 14 days bars that party from de novo review by

the District Judge of those findings, conclusions, and recommendations and, except on grounds of

plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted

and adopted by the district court. Fed. R. Civ. P. 72(b)(2); see Douglass v. United Servs. Auto

Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). Any objection to the Report and

Recommendation must be filed in ECF under the event “Objection to Report and

Recommendations [cv, respoth]” or it may not be considered by the District Judge.

SIGNED this 3rd day of January, 2012.
SIGNED this 10th day of November, 2021.

____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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