Case 6:21-cv-01094-ADA Document 33 Filed 12/13/22 Page 1 of 21

REDACTED PUBLIC VERSION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

WEPAY GLOBAL PAYMENTS LLC,

Plaintiff,

v. Civil Action No. 6:21-cv-1094

PAYPAL, INC.,

Defendant.

DEFENDANT PAYPAL, INC.’S MOTION

TO DISMISS FOR FAILURE TO PROSECUTE
 Case 6:21-cv-01094-ADA Document 33 Filed 12/13/22 Page 2 of 21

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1 

II. BACKGROUND ................................................................................................................ 2 

A. Wepay Has Apparently Dismissed Its Counsel And Has No Plans To

Litigate This Case 2 

B. Mr. Grecia Continues to Harass PayPal And Allege New Actions, Rather Than
Litigate the Case At Hand 7 

III. LEGAL STANDARD....................................................................................................... 10 

IV. ARGUMENT .................................................................................................................... 11 

A. The Court Should Dismiss Wepay’s Patent Infringement Claims With

Prejudice 11 

1. The Clear Record of Delay and Contumacious Conduct Favors

Dismissal ................................................................................................... 12 

2. The Apportionment of Responsibility for FIA’s Failures Between

FIA and Its Counsel Favors Dismissal...................................................... 13 

3. The Degree of Continued Prejudice to PayPal Favors Dismissal ............. 14 

4. Wepay’s Intentional Delays Favor Dismissal ........................................... 14 

V. CONCLUSION ................................................................................................................. 15 

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TABLE OF AUTHORITIES

Cases Page(s)

Beard v. Experian Information Solutions Inc.,

214 F. App’x 459 (5th Cir. 2007) ............................................................................................10

ETLA, LLC v. PayPal, Inc.,

6:21-cv-01005-ADA (W.D. Tex.) .............................................................................................1

ETLA, LLC v. PayPal, Inc.,

No. 21-cv-1005, Dkt. 11 (W.D. Tex. Nov. 29, 2021) ................................................................7

Fintech Innovations Associates LLC v. PayPal, Inc.,

1:22-cv-01212 (N.D. Ill.) ................................................................................................. passim

Fintech Innovations Associates LLC v. PayPal, Inc.,

No. 1:22-cv-01212, Dkt. 29 (N.D. Ill. Sept. 19, 2022) ..............................................................6

Fintech Innovations Associates LLC v. PayPal, Inc.,

No. 1:22-cv-01212, Dkt. 30 (N.D. Ill. Oct. 26, 2022) ...............................................................3

Fintech Innovations Associates LLC v. PayPal, Inc.,

No. 1:22-cv-01212 (N.D. Ill.) ....................................................................................................3

Grecia v. PayPal,
6:21-cv-00309-ADA (W.D. Tex.) .............................................................................................1

Magnuson v. Electronic Data Systems Corp.,

252 F.3d 436, 2001 WL 360841 (5th Cir. 2001) .....................................................................10

McCullough v. Lynaugh,
835 F.2d 1126 (5th Cir. 1988) .................................................................................................10

Qondado LLC v. PayPal, Inc.,

6:21-cv-00565 (W.D. Tex.) .......................................................................................................1

Sealed Appellant v. Sealed Appellee,

452 F.3d 415 (5th Cir. 2006) ...................................................................................................11

Singh v. Wal-Mart Stores Inc.,

No. 1:17-CV-1120-RP, 2022 WL 891969 (W.D. Tex. Mar. 25, 2022) ...................................11

Wepay Global Payments LLC v. Amazon.Com, Inc.,

No. 1:21-cv-01061, Dkt. 22 (N.D. Ill. Oct. 14, 2022) .........................................................3, 13

Wepay Global Payments LLC v. Amazon.Com, Inc.,

No. 1:21-cv-01061, Dkt. 25 (N.D. Ill. Oct. 14, 2022) ...............................................................7

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Wepay Global Payments LLC v. Bank of America N.A.,

No. 1:21-cv-00105, Dkt. 47 (N.D. Ill. Nov. 29, 2022) ..........................................................5, 7

Wepay Global Payments LLC v. JPMorgan Chase Bank, N.A.,

No. 1:21-cv-00103, Dkt. 30 (N.D. Ill. Aug. 2, 2022) ................................................................7

Wepay Global Payments LLC v. McDonald’s Corp.,

No. 22-c-1064, Dkt. 20 (N.D. Ill. Nov. 29, 2022) ...................................................................15

Woodson v. Surgitek, Inc.,

57 F.3d 1406 (5th Cir. 1995) ...................................................................................................11

Other Authorities

Fed. R. Civ. P. 41(b) ......................................................................................................................10

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Pursuant to Fed. R. Civ. P. 41(b), Defendant PayPal, Inc. (“PayPal”) respectfully moves to

dismiss this action by Wepay Global Payments LLC (“Wepay”) with prejudice for failure to

prosecute its claims.

INTRODUCTION

Mr. Grecia—the man behind the Wepay entity and inventor of the design patent at issue

(D930,702)—controls several entities exclusively devoted to patent or other IP assertion.1 Mr.

Grecia has sued PayPal five separate times since March 2021 via five different entities. Notably,

Mr. Grecia has three separate design patent cases pending against PayPal in multiple jurisdictions.

Previously, Mr. Grecia filed another design patent case that he ultimately voluntarily dismissed

without ever serving PayPal, as well as a utility patent case against PayPal that has been dismissed

with prejudice.2 Common to all these cases is the plaintiffs’ pattern of non-responsiveness, delay

tactics, and disregard of court-ordered deadlines. As Mr. Grecia’s pending litigations have

languished, he has instead focused on sending increasingly bizarre and threatening e-mails to

PayPal personnel. And while PayPal tried in good faith to resolve the dispute,

. Further, Wepay has failed to enter a schedule and provide

infringement contentions per the Court’s order, and

1
Mr. Grecia is the principal of or otherwise associated with the following entities that PayPal is
aware of to-date: ETLA, LLC; WePay Global Payments, LLC; Fintech Innovations Associates
LLC; Qondano LLC; Grecia Estate Holdings, LLC; Koin LLC; Dualscan LLC, Grecia
Innovations, LLC; Fintech Cards LLC; and Encryplify LLC.
2
See also Qondado LLC v. PayPal, Inc., 6:21-cv-00565 (W.D. Tex.) (voluntarily dismissed);
ETLA, LLC v. PayPal, Inc., 6:21-cv-01005-ADA (W.D. Tex.) (pending); Fintech Innovations
Associates LLC v. PayPal, Inc., 1:22-cv-01212 (N.D. Ill.) (pending); Grecia v. PayPal, 6:21-
cv-00309-ADA (W.D. Tex.) (dismissed with prejudice). PayPal has filed or will be filing
similar motions in those cases, which have been pending over a year with no schedule
submitted by Mr. Grecia’s entities.

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. Indeed, it appears that Mr. Grecia recently stopped communicating with

Wepay’s counsel altogether.

And while Wepay has failed to engage substantively or to serve infringement contentions,

Mr. Grecia has sent over 75 emails to PayPal directly in the last three months, that demonstrate he

has no interest in prosecuting these cases. Mr. Grecia’s litigation strategy instead appears to be

focused on filing a high volume of cases paired with a never-ending stream of e-mail threats to try

and extract settlements from defendants to get him to stop the harassment, rather than actually

pursuing any of his cases in court. Additionally, if these tactics fail, Mr. Grecia simply moves

onto the next threat and abandons the prior ones.3 PayPal should not be forced to defend itself

under these circumstances. Unless the Court intervenes, Mr. Grecia undoubtedly will continue to

allow the case to languish at PayPal’s expense.

BACKGROUND

A. Wepay Has Apparently Dismissed Its Counsel And Has No Plans To Litigate
This Case

Mr. Grecia and Wepay appear to no longer be represented, but he has failed to inform the

Court. Nearly two months ago, Mr. Grecia communicated to PayPal that he is no longer

represented. See generally Ex. 2 (Oct. 4-7, 2022 Emails fr. Grecia to PayPal); see also Ex. 11

(Nov. 24-25, 2022 Emails fr. Grecia to PayPal) at 2 (Nov. 24, 11:38 AM) (“Matt Wa[]wrzyn

[Wepay’s counsel] and Qondado LLC is out.”). In a related case, Amazon also noted in a recent

3
Instead of litigating his patent cases, Mr. Grecia has now claimed to file actions with the
Copyright Claims Board against PayPal on issues wholly unrelated to the design patent cases.
See, e.g., Ex. 1 (Sept. 19-Oct. 10, 2022 Emails fr. Grecia to PayPal) at 16 (Sept. 22 12:28 PM)
(“Grecia will file a copyright case within the 10-14 day window to maintain the removal of
your illegal use fo my reg. copyright”).

2
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status report that Wepay may be in the process of obtaining new counsel.4 Likewise, in a related

PayPal case,5 on the very day that the parties in this case were scheduled to file their October 26th

status report, plaintiff Fintech Innovations Associates’ (“FIA”) counsel—also Wepay’s counsel—

responded to inform PayPal that . See Ex. 3 (Oct. 2022

Emails fr. Reardon to Wawrzyn) at 1-2 (Oct. 26, 11:49 AM) (

.”);

see also id. at 1 (03:06 PM) (PayPal’s response to FIA’s counsel indicating continued concerns and

intent to seek relief from the Court); Fintech Innovations Associates LLC v. PayPal, Inc., No. 1:22-

cv-01212, Dkt. 30 (N.D. Ill. Oct. 26, 2022) (Status Report).

Mr. Grecia had already separately informed PayPal that his entities are in the process of

“restructuring . . . litigation counsel” and that “new counsel will resume any remaining legal

matters”:

4
See Wepay Global Payments LLC v. Amazon.Com, Inc., No. 1:21-cv-01061, Dkt. 22 (N.D. Ill.
Oct. 14, 2022) (“Amazon understands that Wepay may be in the process of obtaining new
counsel and submits this status report unilaterally in lieu of a joint status report, per the request
of Wepay’s current counsel.”).
5
Fintech Innovations Associates LLC v. PayPal, Inc., No. 1:22-cv-01212 (N.D. Ill.).

3
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Ex. 2 at 1 (Oct. 7, 2022, 03:24 PM).

Ex. 4 (Oct. 10, 2022 Emails fr. Grecia to PayPal) at 1 (11:58 PM); see also Ex. 11 at 2 (Nov. 24,

11:38 AM) (“Matt Wa[]wrzyn [Wepay’s counsel] and Qondado LLC is out.”).

Mr. Grecia sent the earliest of these emails almost two months ago. No new counsel has

been hired to PayPal’s knowledge. And Wepay—a limited liability company registered in

Delaware—is the only plaintiff. If Wepay has separated from its counsel and does not retain new

4
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counsel, the case cannot proceed. The Northern District of Illinois recently dismissed Wepay’s

case against Bank of America for want of prosecution after Wepay failed to appear for a

conference. See Wepay Global Payments LLC v. Bank of America N.A., No. 1:21-cv-00105, Dkt.

47 (N.D. Ill. Nov. 29, 2022). The conference itself was related to Bank of America’s emergency

motion to stay all proceedings based on Wepay’s general failure to respond to Bank of America’s

counsel, and representations by Mr. Wawrzyn (Wepay’s counsel) that he had not received

responsive communications from Mr. Grecia since October 7, 2022. see id., Dkt. 43 (Nov. 11,

2022).

Mr. Grecia’s actions have further demonstrated that regardless of representation, Wepay

has no intention of actually litigating this case. After weeks of , and

days before the parties’ initial disclosures were due, Mr. Grecia’s wife (an apparent agent for the

company) sent an email to Wepay’s counsel, later forwarded to PayPal, that directed Wepay’s

counsel to

Ex. 5 (Sept. 29, 2022 Emails fr. Grecia to PayPal) at 1-2 (01:21 AM).

Given that PayPal was unaware of the correspondence at the time, it proceeded to litigate

the case. For example, in the Fintech case, the parties still exchanged initial disclosures on October

3, 2022, consistent with the Fintech Court’s Order. PayPal sent FIA a letter addressing certain

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deficiencies on October 17, 2022. Ex. 6 (Oct. 17, 2022 Letter fr. Reardon to Wawrzyn). FIA did

not respond. Critically, FIA also failed to serve its infringement contentions on October 17, 2022,

as required by the Fintech Court’s Minute Entry. Fintech Innovations Associates LLC v. PayPal,

Inc., No. 1:22-cv-01212, Dkt. 29 (N.D. Ill. Sept. 19, 2022). PayPal’s counsel attempted to reach

FIA’s counsel multiple times, including regarding the missed contention deadline and status report.

Ex. 3 (Oct. 2022 Emails fr. Reardon to Wawrzyn) at 3 (Oct. 18, 11:44 AM); see also id. at 2 (Oct.

20, 10:53 PM and Oct. 25, 02:10 PM). After three weeks of radio silence, and hours before the

October 26 status report was due, FIA’s counsel contacted counsel for PayPal, offering edits to the

joint status report, but stating only that he

. Ex. 3 at 1-2 (Oct. 26, 11:49 AM). FIA was

similarly nonresponsive with the November 28 status report (see Fintech, 1:22-cv-01212, Dkt. 32

(N.D. Ill. Nov. 28, 2022)), despite the Court’s order for input from both parties, id., Dkt. 31 (Oct.

28, 2022 Minute Entry) (“By 11/28/2022, the parties must file a joint status report with input from

both sides on the same topics as the instant status report.”).

Similarly, in this case, Wepay has not served its initial infringement contentions, well over

a year into the case (nor have Fintech and ETLA served them). Wepay has also failed to respond

to PayPal’s numerous attempts to enter a schedule despite the Court’s request that the parties meet

and confer to do so on July 5, 2022. Ex. 12 (July 5, 2022 Email fr. Mr. Gunnell); Declaration of

Katherine Reardon in Support of Defendant PayPal, Inc.’s Motion to Dismiss for Failure to

Prosecute (“Reardon Decl.”) ¶ 1; see also, e.g., Ex. 7 (Oct. 10, 2022 Email fr. Reardon to

Wawrzyn) (proposing schedules for the ETLA and Wepay cases to which neither Wepay nor its

counsel responded). Wepay’s failure to timely serve its initial infringement contentions, along

with PayPal’s inability to enter a schedule and communicate productively with opposing counsel,

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assuming Wepay is represented at all, has unfairly prejudiced PayPal’s ability to develop its

defenses and to prepare its invalidity contentions.6 PayPal agreed to push back the early deadlines

in this case once, and in good faith, after understanding

. Reardon Decl. ¶ 1. However, after the parties’

counsel had , Mr. Grecia abruptly

. Counsel for PayPal has not been able to have any productive conversations with

opposing counsel regarding a proposal to move this case forward with Wepay.

B. Mr. Grecia Continues to Harass PayPal And Allege New Actions, Rather Than
Litigate the Case At Hand

At the same time that his company has gone silent, Mr. Grecia—in his personal capacity—

has contacted PayPal directly over 75 times since the beginning of August.7 The nature of these

emails include threatening new actions,8 purporting to develop patent assets specifically targeting

6
Mr. Grecia’s behavior in this case is not unique to his cases against PayPal. The Grecia-
plaintiffs have also stalled prosecution in cases against other defendants in other cases. As
mentioned above, the Northern District of Illinois dismissed Wepay’s case against Bank of
America for want of prosecution after Wepay failed to appear for a conference. See Wepay
Global Payments LLC v. Bank of America N.A., No. 1:21-cv-00105, Dkt. 47 (N.D. Ill. Aug. 2,
2022). Similarly, in a case against JP Morgan Chase Bank, Wepay’s counsel failed to show
up for a telephonic status hearing. See Wepay Global Payments LLC v. JPMorgan Chase Bank,
N.A., No. 1:21-cv-00103, Dkt. 30 (N.D. Ill. Aug. 2, 2022). Against Amazon, Wepay failed to
respond to Amazon’s opposed motion to stay pending post grant review, for which the court-
ordered deadline was October 24, 2022. See Wepay Global Payments LLC v. Amazon.Com,
Inc., No. 1:21-cv-01061, Dkt. 25 (N.D. Ill. Oct. 14, 2022).
7
PayPal previously briefed the Court on Mr. Grecia’s campaign of harassing emails directed
toward PayPal. See generally ETLA, LLC v. PayPal, Inc., No. 21-cv-1005, Dkt. 11 (W.D. Tex.
Nov. 29, 2021) (PayPal’s motion to have Mr. Grecia designated as a vexatious litigant).
8
See, e.g., Exs. 1-3, 8 (Sept. 29-Oct. 3 Emails fr. Grecia to PayPal), 10 (Oct. 27-Nov. 23, 2022
Emails fr. Grecia to PayPal).

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PayPal’s products and services,9 cryptically—and unproductively—

,10 discussing “restructuring [his] litigation counsel,”11 and

threatening legal action against his counsel for purportedly conspiring with defense counsel and

the USPTO director.12 Reardon Decl. ¶ 1.

At the same time, Mr. Grecia has also lost any focus on his patent cases against PayPal. It

is clear from Mr. Grecia’s recent emails that he does not value his own patent cases. On multiple

occasions, Mr. Grecia indicated that certain copyright case(s)—that are not filed in any district

court—are now his focus, further highlighting that Mr. Grecia does not intend to prosecute the

present case:

Ex. 10 at 8 (Nov. 18, 11:38 AM); see also id. at 1 (Nov. 23, 05:07 AM) (loosely referencing an
unrelated trademark issue under “DTSA 2016”).

9
See, e.g., Ex. 4 (Oct. 10, 2022 Emails fr. Grecia to Paypal) at 1 (“We expect no longer than 3
years until we will continue our patenting activity and new patents that will replace D945,453
coverage of Zelle QR, Zelle for Retail, PayPal, and Samsung Pay.”).
10
See, e.g., Ex. 1 at 1; Ex. 4 at 1; Ex. 8 at 1-12.
11
See, e.g., Ex. 4.
12
Ex. 9 (Oct. 26, 2022 Emails fr. Grecia to Misc.) at 1-2 (04:36 PM).

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Ex. 8 at 11-12 (Sept. 29, 2022, 07:30 AM).

At one point, Mr. Grecia even offered to “

Id. at 8 (Sept. 30, 2022, 09:49 PM). In the same thread and yet another separate thread, Mr. Grecia

forwarded an email to PayPal indicating that he had initiated an investigation with the National

Intellectual Property Rights Coordination Center, and that all cases against PayPal should be

stayed until the investigation is complete.

Id. at 1 (Oct. 3, 2022, 06:05 AM).

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Ex. 5 at 1 (Sept 29, 2022, 01:24 AM).

The above exchanges are representative of the flurry of emails Mr. Grecia has sent PayPal

directly over the last few months. Mr. Grecia’s conduct frustrates PayPal’s ability to engage with

Wepay to move this case forward, let alone defend itself in this case. Wepay—through Mr.

Grecia’s actions—has made clear that he has no intention of prosecuting this case, irrespective of

whether he is presently even represented by counsel. Unless the Court intervenes, Mr. Grecia will

undoubtedly continue to allow the case to languish at PayPal’s expense.13

LEGAL STANDARD

Rule 41(b) provides that “[f]or failure of the plaintiff to prosecute or comply with these

rules or any order of Court, a defendant may move for dismissal of an action or any claim against

the defendant.” Fed. R. Civ. P. 41(b).

A district court may dismiss an action for failure to prosecute or to comply with an order

of the court. See e.g., McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988); Magnuson v.

Electronic Data Systems Corp., 252 F.3d 436, 2001 WL 360841 (5th Cir. 2001); Beard v. Experian

13
PayPal recognizes that involuntary dismissal under Rule 41(b) is a harsh remedy that is
generally invoked sparingly. However, Mr. Grecia has repeatedly delayed this case and has
failed to comply with the local Court rules and orders of the Court—dilatory tactics that
represent microcosms in a long line of bad faith tactics used against PayPal across multiple
jurisdictions. This is no ordinary case.

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Information Solutions Inc., 214 F. App’x 459 (5th Cir. 2007). Dismissal is “appropriate if a ‘clear

record of delay or contumacious conduct by the plaintiff exists and lesser sanctions would not

serve the best interests of justice.’” Singh v. Wal-Mart Stores Inc., No. 1:17-CV-1120-RP, 2022

WL 891969, at *3 (W.D. Tex. Mar. 25, 2022) (Pitman, R.) (citing Price v. McGlathery, 792 F.2d

472, 474 (5th Cir. 1986)). Ultimately, the power to dismiss is “committed to the sound discretion

of the district courts.” Id. (citing Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541, 544

(5th Cir. 1978)). This power stems from the Court’s inherent power to manage its affairs to achieve

the orderly and expeditious disposition of cases. See Woodson v. Surgitek, Inc., 57 F.3d 1406,

1417 (5th Cir. 1995).

In addition, the Fifth Circuit has provided principles to guide a district court in determining

whether to dismiss a case for want of prosecution pursuant to Rule 41. At least one of three

aggravating factors must be present in order to properly dismiss a plaintiff for failure to

prosecute: (1) “the extent to which the plaintiff, as distinguished from his counsel, was

personally responsible for the delay,” (2) “the degree of actual prejudice to the defendant,” and

(3) “whether the delay was the result of intentional conduct.” Sealed Appellant v. Sealed

Appellee, 452 F.3d 415, 418 (5th Cir. 2006) (quoting Rogers v. Kroger Co., 669 F.2d 317, 320

(5th Cir. 1982)).

ARGUMENT

A. The Court Should Dismiss Wepay’s Patent Infringement Claims With

Prejudice

Wepay and its current counsel have demonstrated a propensity for failing to follow the

court rules and comply with court orders. There is a clear record of delay and contumacious

conduct by Wepay. Further, each of the Fifth Circuit’s aggravating factors supports dismissal of

Wepay’s patent infringement claims.

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1. The Clear Record of Delay and Contumacious Conduct Favors Dismissal

The frequency and magnitude of Wepay and the other Grecia-plaintiffs’ failure to comply

with the deadlines for prosecution of this suit is beyond debate. Wepay’s numerous failures to

meaningfully communicate with PayPal and meet basic deadlines in this case demonstrate

Wepay’s disregard for proper prosecution of this case. Wepay has not served infringement

contentions (despite the case having languished for over a year). Wepay has also failed to respond

to PayPal’s numerous attempts to enter a schedule despite the Court’s order on July 5, 2022. Ex.

12 (July 5, 2022 Email fr. Mr. Gunnell); Reardon Decl. ¶ 1; see also, e.g., Ex. 7 (Oct. 10, 2022

Email fr. Reardon to Wawrzyn) (proposing schedules for the ETLA and Wepay cases to which

neither Wepay nor its counsel responded).14

And as noted above, Mr. Grecia’s behavior in this case is not unique to his cases against

PayPal. The Grecia-plaintiffs have also stalled prosecution in cases against other defendants in

other cases. Most notably, the Northern District of Illinois dismissed Wepay’s case against Bank

of America for want of prosecution after Wepay failed to appear for a conference. See generally

n.6, supra.

14
Likewise, in the Fintech case, FIA failed to serve its initial infringement contentions on
October 17, 2022 as required by the Fintech Court’s Minute Entry. See Ex. 3; Fintech, 1:22-
cv-01212, Dkt. 29 (N.D. Ill. Sept. 19, 2022). Further, FIA failed to respond PayPal’s counsel
on the status of its disclosures, along with other communication failures, including failures to
respond to PayPal’s letter highlighting deficiencies with FIA’s initial disclosures and PayPal’s
multiple attempts to contact FIA regarding the parties’ joint status report. See Exs. 3, 6; see
Fintech, 1:22-cv-01212, Dkt. 30 (N.D. Ill. Oct. 26, 2022). FIA was similarly nonresponsive
with the November 28 status report (see Fintech, 1:22-cv-01212, Dkt. 32 (N.D. Ill. Nov. 28,
2022)), despite the Court’s order for input from both parties, id., Dkt. 31 (Oct. 28, 2022 Minute
Entry) (“By 11/28/2022, the parties must file a joint status report with input from both sides
on the same topics as the instant status report.”).

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Moreover, the Principal behind Wepay, Mr. Grecia, has indicated that he does not wish to

prosecute this case, and indicated that he was replacing his counsel, but to-date has failed to do so.

See Exs. 2, 4, 8, 10, 11.

2. The Apportionment of Responsibility for Wepay’s Failures Between

Wepay and Its Counsel Favors Dismissal

Wepay’s disregard for the Court rules and orders of the Court and its failures to meet

deadlines cannot be attributed to Wepay’s counsel. Mr. Grecia emailed PayPal directly, informing

PayPal that FIA is no longer represented by counsel, and that he does not intend to continue

prosecuting this case. See, e.g., Exs. 2 at 1 (Oct. 7, 2022, 03:23 PM), 5 at 1-2 (Sept. 29, 2022, 01:21

AM), Ex. 11 at 2 (Nov. 24, 11:38 AM). In both instances, the Court should have been notified.

Amazon was also informed that Wepay may be in the process of obtaining new counsel.15

Likewise, on the very day that the parties in the Fintech case were scheduled to file the October

26th status report, FIA’s counsel finally responded to PayPal’s counsel (after multiple outreach

attempts), merely to inform PayPal that . See Ex. 3; see

also Fintech, No. 1:22-cv-01212, Dkt. 30 (N.D. Ill. Oct. 26, 2022 Status Report). FIA was

similarly nonresponsive with the November 28 status report (id., Dkt. 32), despite the Fintech

Court’s order for input from both parties. Id., Dkt. 31 (Minute Entry) (“By 11/28/2022, the parties

must file a joint status report with input from both sides on the same topics as the instant status

report.”). As such, the failures and silence do not appear to be the fault of Wepay’s counsel but

rather the fault of the client.

15
See Wepay Global Payments LLC v. Amazon.Com, Inc., No. 1:21-cv-01061, Dkt. 22 (N.D. Ill.
Oct. 14, 2022).

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3. The Degree of Continued Prejudice to PayPal Favors Dismissal

Prejudice to PayPal is obvious. PayPal has the right to defend itself to a favorable

resolution. Wepay’s failure to respond to PayPal or to enter a schedule, let alone its failure to put

PayPal on notice of its infringement theory by timely serving its initial infringement contentions,

has unfairly prejudiced PayPal’s ability to develop its defenses and to prepare its invalidity

contentions.

4. Wepay’s Intentional Delays Favor Dismissal

Wepay’s failure to prosecute the action cannot be characterized as anything but intentional.

Despite failing to engage on the merits and dismissing its own counsel without replacement,

Wepay (Mr. Grecia) continues its onslaught of harassing and unproductive emails toward PayPal.

Wepay refuses to engage on the merits precisely because this design patent suit is meritless.

Perhaps recognizing the futility of this suit, Mr. Grecia’s emails to PayPal state that he has no

intention of continuing to pursue it:

Ex. 5 at 1-2 (Sept. 29, 2022, 01:21 AM).

As discussed in PayPal’s separately filed motion to dismiss under Rule 12(b)(6), the ’702

design patent is invalid for claiming an unoriginal and purely functional design. See generally

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Dkt. No. 7.16 The Northern District of Illinois recently dismissed Wepay’s complaint against

McDonald’s based on the same patent and similar infringement theory. See Wepay Global

Payments LLC v. McDonald’s Corp., No. 22-c-1064, Dkt. 20 (N.D. Ill. Nov. 29, 2022) at 5

(“Plaintiff’s design appears to be the antithesis of what a design patent is supposed to protect, i.e.,

novel, and ornamental features.”). The court went on to note, “GUI apps have been around a long

time. Plaintiff’s attempt to compare what is essentially nothing but unadorned squares and circles

with McDonald’s sales items, food menu, and condiments, might perhaps be good fodder for a

Seinfeld episode, but borders on the ridiculous in a federal court.” Id. at 6.

Unsurprisingly, PayPal—a financial services company offering products and services for

decades—has been using the rudimentary accused design features (i.e., rectangles) in its app and

website long before Mr. Grecia sought a patent trying to cover already used basic geometric

shapes. Mr. Grecia knows this, and that is why he is refusing to prosecute this and related cases.

CONCLUSION

Accordingly, PayPal respectfully requests that the Court dismiss Wepay’s claims with

prejudice for failure to prosecute under Fed. R. Civ. P. 41(b).

16
Although the Court denied PayPal’s motion, the Court granted leave for PayPal to file a Rule
56 Motion for Summary Judgment or Rule 12(c) Motion for Judgment on the Pleadings. Dkt.
No. 29 (Order denying PayPal’s Rule 12(b)(6) Motion to Dismiss) at 2.

15
 Case 6:21-cv-01094-ADA Document 33 Filed 12/13/22 Page 20 of 21

Dated: December 6, 2022 Respectfully Submitted,

FISH & RICHARDSON P.C.

By: /s/ David M. Hoffman

David M. Hoffman
Texas Bar No. 24046084
hoffman@fr.com
Tommy Jacks
Texas Bar No. 10452000
jacks@fr.com
111 Congress Avenue, Suite 810
Austin, TX 78701
Tel: (512) 472-5070
Fax: (512) 320-8935

Ahmed J. Davis (pro hac vice)

Raj Utreja (pro hac vice)
1000 Maine Avenue SW, Suite 1000
Washington, DC 20024
Tel: (202) 783-5070
Fax: (202) 783-2331

Oliver J. Richards (admitted in WDTX)

orichards@fr.com
12860 El Camino Real, Suite 400
San Diego, CA 92130
Tel: (858) 678-4715
Fax: (858) 678-5099

Katherine H. Reardon (admitted in WDTX)

reardon@fr.com
1180 Peachtree Street NE, 21st Floor
Atlanta, GA 30309
Tel: (404) 892-5005
Fax: (404) 892-5002

COUNSEL FOR DEFENDANT,

PAYPAL, INC.

16
 Case 6:21-cv-01094-ADA Document 33 Filed 12/13/22 Page 21 of 21

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on December 6, 2022, the foregoing document was

filed electronically in compliance with Local Rule CV-5(a) and was served via electronic mail

pursuant to Local Rule CV-5.2(e) on counsel of record listed below:

H. Artoush Ohanian
artoush@ohanianip.com
OHANIAN IP
604 West 13th Street
Austin, TX 78701

Matthew Wawrzyn
matt@wawrzynlaw.com
WAWRZYN LLC
200 East Randolph Street, Suite 5100
Chicago, IL 60601

Counsel for Plaintiff

/s/ David M. Hoffman

David M. Hoffman

17