[00:00:00] Speaker 00:
Our final case for argument today is 23-1-736, Howard-Alkali Networks v. Tessera, Licensed.

[00:00:12] Speaker 00:
Is it Mr. Hallward Dreemeyer?

[00:00:15] Speaker 03:
Dreemeyer.

[00:00:16] Speaker 00:
Say it.

[00:00:17] Speaker 00:
Hallward Dreemeyer.

[00:00:22] Speaker ?:
Hallward Dreemeyer.

[00:00:23] Speaker 03:
Please present.

[00:00:23] Speaker 03:
Thank you, Your Honor.

[00:00:24] Speaker 03:
May it please the Court.

[00:00:26] Speaker 03:
Tassera is largely a paper entity, but to the extent that it exists at all, it exists in New York.

[00:00:34] Speaker 03:
And it is therefore subject to both general jurisdiction in New York and to specific jurisdiction with respect to this dispute.

[00:00:42] Speaker 03:
Tassera is managed from New York.

[00:00:46] Speaker 03:
It has only two managers, but only one of those is in the United States.

[00:00:49] Speaker 03:
And it is only that manager, John Scale, whose name appears on any of the documents.

[00:00:55] Speaker 03:
It is John Scahill who filed their certificate of formation for Tassera, listing his New York address in doing so.

[00:01:04] Speaker 03:
It is John Scahill who registered the assignment of the patents to Tassera, listing his New York address.

[00:01:12] Speaker 03:
It is John Scahill, or at least it's an inference, it is John Scahill who registered Tassera's website when it was registered from New York, because that's their only representative in New York.

[00:01:24] Speaker 02:
What's that?

[00:01:24] Speaker 02:
Isn't Tasker incorporated in Texas?

[00:01:26] Speaker 03:
It is incorporated in Texas, but it is subject to general jurisdiction, not only the place where it is incorporated, but in its principal place of business.

[00:01:35] Speaker 03:
It was alleged in the complaint on information and belief that Tasker was actually had its principal place of business in New York.

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And that's because, as the Supreme Court has held in the Daimler case, that is more of a question, where is the company at home?

[00:01:53] Speaker 03:
We know in the statutory context of diversity jurisdiction that that principal place of business is the nerve center test.

[00:02:01] Speaker 03:
And Daimler, I think, largely picks that up with the at-home test and the reference to the Perkins case.

[00:02:07] Speaker 01:
Would you say that the context that Tessera has with the state of New York is management of Tessera?

[00:02:17] Speaker 03:
It's the management.

[00:02:18] Speaker 03:
That's right.

[00:02:19] Speaker 03:
It's the nerve center, the sort of brain trust, if you will, for Tessera.

[00:02:24] Speaker 01:
That's interesting that you use the term nerve center because it kind of depicts this huge vastal, you know, controls and wires and kind of like a Winsor and Bosch type character pulling all these levers and everything.

[00:02:38] Speaker 01:
But the record doesn't give us any evidence.

[00:02:40] Speaker 01:
Well, the evidence of what to tell with this manager.

[00:02:44] Speaker 01:
What is it that this manager is doing?

[00:02:47] Speaker 03:
Well, we know that TASRA, because of Quest's SEC filings, has no assets other than the patents.

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We know that those patents were purchased in New York.

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When they were registered, they were registered from New York.

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And the PTO filing with respect to that gives an address in New York for all inquiries about the assignment of those patents to TASRA.

[00:03:12] Speaker 00:
Counsel, isn't it the case, though, that personal jurisdiction

[00:03:16] Speaker 00:
has to be related to the action, and this action is one for enforcement.

[00:03:21] Speaker 00:
So why does acquisition create personal jurisdiction if they're not enforcing in New York?

[00:03:29] Speaker 03:
Well, Your Honor, just to be clear, the points I've been making so far are about general jurisdiction, which is a relative inquiry.

[00:03:36] Speaker 03:
And to the extent that they are at home anywhere, it's in New York.

[00:03:39] Speaker 03:
That's where all their activities occur.

[00:03:41] Speaker 01:
The only thing they say they have in Texas, that's where they're registered.

[00:03:45] Speaker 03:
Well, but at home is not a fiction.

[00:03:48] Speaker 00:
Aren't they also asserting the patent?

[00:03:51] Speaker 03:
They are.

[00:03:51] Speaker 03:
Their New York attorney asserted the patent.

[00:03:54] Speaker 00:
So they're incorporating in Texas.

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They're enforcing the patent in Texas.

[00:04:01] Speaker 03:
That's true.

[00:04:03] Speaker 03:
But all of the decisions took place in New York.

[00:04:07] Speaker 02:
The decision to buy the decision.

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works remotely or is out of town or hires out of town lawyers, that they're somehow located in those places?

[00:04:25] Speaker 03:
When that's their only manager, yes.

[00:04:28] Speaker 03:
We know that they only have, apart from the two managers, and one of those is in Germany, one of them is in New York, apart from the two managers, they have one employee.

[00:04:36] Speaker 03:
We don't know that employee's name or what that employee does.

[00:04:39] Speaker 00:
We know they're not a manager.

[00:04:40] Speaker 00:
Don't they have an office in Plano, Texas?

[00:04:42] Speaker 03:
Well, Your Honor, they say they do.

[00:04:44] Speaker 03:
But we don't believe so.

[00:04:46] Speaker 03:
We've searched on the internet, and there's no indication that there is such an office.

[00:04:50] Speaker 03:
It used to be at their local council's office.

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Now they say they have another.

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But we know that in Ryan, New York, is where they've directed all correspondence about the patents.

[00:05:01] Speaker 03:
It is in Ryan, New York, where their own website was registered.

[00:05:07] Speaker 03:
It's in Ryan, New York, where the Quest website that actually

[00:05:11] Speaker 03:
What's that?

[00:05:12] Speaker 02:
I mean, are you saying that where somebody's lawyer is is where they do business?

[00:05:16] Speaker 03:
I say, Your Honor, here there is not just where their lawyer is.

[00:05:22] Speaker 03:
Their lawyer shares an office, a suite, an office suite with the manager of Tassera.

[00:05:28] Speaker 03:
It's in that office suite that their manager, these are the allegations of the complaint, that their manager contracted with their lawyer to bring the prosecution.

[00:05:39] Speaker 03:
This is all about junior jurisdiction.

[00:05:41] Speaker 02:
By the way, you mentioned Plano.

[00:05:42] Speaker 02:
I'm not going to take up too much of your time on this.

[00:05:45] Speaker 02:
But your blueberry has Plano highlighted in yellow as confidential.

[00:05:49] Speaker 02:
How can something, and I know it's your, but you need to resolve this too.

[00:05:54] Speaker 02:
How can a place of business be confidential?

[00:05:57] Speaker 03:
Your honor, it was in a document

[00:05:59] Speaker 03:
that was the entirety of the document was listed.

[00:06:02] Speaker 02:
Yeah, but you can't do that to us.

[00:06:03] Speaker 02:
You have to go through every single confidential marking and determine whether they're valid or not and confer with your client or your opposing counsel.

[00:06:11] Speaker 02:
I mean, I've read this.

[00:06:12] Speaker 02:
This is ludicrous that this is in yellow.

[00:06:14] Speaker 03:
I agree, Your Honor.

[00:06:15] Speaker 03:
We did not designate any of this as confidential.

[00:06:18] Speaker 03:
It was our opposing counsel who did.

[00:06:19] Speaker 02:
Yes, but when you file a brief with us, our rules require you

[00:06:22] Speaker 02:
to certify that it's confidential, and this can't be confidential.

[00:06:27] Speaker 03:
Well, we did not, before filing our brief, consult with the opposing counsel about what our brief was going to say, but I take your point that perhaps we could have negotiated that after its filing.

[00:06:39] Speaker 03:
But I do want to say with respect to specific jurisdiction as well, that one of the allegations of the complaint is

[00:06:47] Speaker 03:
that there is an ongoing relationship with debt-a-list, not just with respect to the purchase of the patents, but also their enforcement.

[00:06:57] Speaker 03:
That was an allegation that was made on information and belief because we didn't yet have discovery.

[00:07:02] Speaker 03:
We asked for a stay so that we could have discovery.

[00:07:05] Speaker 03:
We were denied that.

[00:07:07] Speaker 03:
At oral argument, the judge asked specifically about that agreement.

[00:07:11] Speaker 03:
We said, we've asked for it in discovery.

[00:07:14] Speaker 03:
We've not been given it.

[00:07:15] Speaker 03:
We have since been given that document, and that document bears out every inference to which we are entitled based on that allegation.

[00:07:23] Speaker 03:
There is an ongoing relationship that obligates Tassera to enforce these patents, and it is an ongoing relationship that has its locus in New York, Your Honor.

[00:07:36] Speaker 01:
But where does it enforce its patents?

[00:07:39] Speaker 03:
It has brought the enforcement suits in Texas, but we know that...

[00:07:45] Speaker 03:
Well, Your Honor, no it doesn't, because it certainly indicates that they would be subject to specific jurisdiction in Texas, but that's not the only place where they're subject to specific jurisdiction.

[00:07:58] Speaker 01:
They're also subject to specific jurisdiction.

[00:08:09] Speaker 03:
Well, Your Honor, that's basically a but for, a causation standard.

[00:08:14] Speaker 03:
And New York and Federal law both reject a causation standard.

[00:08:18] Speaker 03:
Under New York law, the Court has been clear that the claim need only be related in some way, in some way arguably connected

[00:08:29] Speaker 03:
to the transaction.

[00:08:30] Speaker 02:
Here we have a transaction.

[00:08:32] Speaker 02:
All we're talking about is an enforcement action.

[00:08:35] Speaker 02:
They're incorporated in Texas.

[00:08:36] Speaker 02:
They filed in Texas.

[00:08:37] Speaker 02:
The fact that they have lawyers that live elsewhere or CEOs that live elsewhere doesn't mean that the company isn't doing enforcement anymore.

[00:08:47] Speaker 03:
Well, because, Your Honor, because the contract, well, that's where their obligation

[00:08:53] Speaker 03:
to enforce it takes place.

[00:08:54] Speaker 03:
Their obligation to enforce it is in New York, where there was an agreement.

[00:09:00] Speaker 02:
This is a little off point, but there were some references in the brief that they filed this infringement action, and then they dismissed it, but that kicked off the time for you all to file an IPR.

[00:09:10] Speaker 02:
Did you file an IPR?

[00:09:11] Speaker 02:
Yes, Your Honor, we had.

[00:09:13] Speaker 03:
Yes, Your Honor.

[00:09:15] Speaker 00:
Well, can I ask a question going back?

[00:09:18] Speaker 00:
I understood

[00:09:20] Speaker 00:
there to be a declaration that asserts that they have both an employee and a principal place of business and actual office in Plano, Texas.

[00:09:30] Speaker 00:
And there's a declaration that says this.

[00:09:33] Speaker 00:
I don't understand at this point how you're saying, well, we couldn't find it.

[00:09:37] Speaker 00:
I don't know what you want me to do with that.

[00:09:39] Speaker 03:
Your Honor, when they filed for their certificate of formation, they said that they were located at their local council's office in Marshall.

[00:09:49] Speaker 03:
Since then, they have said that they are in Plano.

[00:09:52] Speaker 03:
But they have never given an address for an office in Plano.

[00:09:55] Speaker 00:
There is a declaration.

[00:09:57] Speaker 03:
It does not give an address.

[00:09:59] Speaker 00:
There's a declaration, which is evidence.

[00:10:01] Speaker 00:
And that declaration says, we have an office in Plano, Texas, and we have an employee who works at that office in Plano, Texas.

[00:10:09] Speaker 03:
And they have an employee.

[00:10:12] Speaker 00:
At this stage, in this process, I'm supposed to find, because they didn't give an address, or because you think maybe it doesn't exist, I'm supposed to conclude that this person is committed basically a crime?

[00:10:27] Speaker 00:
Because this is sworn affidavit.

[00:10:29] Speaker 03:
Your Honor, I'm not suggesting that there's not some location in Plano.

[00:10:34] Speaker 03:
The test is principal place of business.

[00:10:36] Speaker 03:
By its terms, that is a relative standard.

[00:10:40] Speaker 03:
And as I mentioned, it's the Hertz versus Friend case in the Supreme Court.

[00:10:44] Speaker 00:
Okay, just to be clear, so you're now not disputing that they have an office in Plano?

[00:10:49] Speaker 03:
Your Honor, they say they have one.

[00:10:51] Speaker 03:
but they've never said what it was other than that they exist.

[00:10:55] Speaker 00:
Not that they say they have one.

[00:10:56] Speaker 00:
They've presented evidence that they have one, correct?

[00:11:00] Speaker 03:
With that barely, that assertion, yes, Your Honor, that they have an office and they have an employee.

[00:11:07] Speaker 03:
The only thing we know about that employee, Your Honor, is that employee is not a manager.

[00:11:13] Speaker 03:
This is a page 42 of the Red Brief.

[00:11:16] Speaker 03:
They say that there are two managers, two scale in Germany,

[00:11:21] Speaker 03:
and John Scahill in New York.

[00:11:24] Speaker 03:
The principal place of business test is a relative test.

[00:11:28] Speaker 03:
It asks where is it primarily, and it is primarily where they are managed from, where the decisions are taking place.

[00:11:36] Speaker 03:
When their manager sitting in Rye, New York, talks with their lawyer who's sitting in the same suite in New York, they are making the decisions for the company

[00:11:47] Speaker 03:
that are where the principal business is done.

[00:11:50] Speaker 00:
So do you believe that acquisition of the patent alone in New York, and I understand you're not saying that that's the case here, but this pleases either level, do you believe that acquisition of the patent in New York creates either general or personal jurisdiction in New York for the company, if they are otherwise insured in a different state?

[00:12:12] Speaker 03:
Acquisition alone would not work.

[00:12:14] Speaker 03:
We have alleged that there's an ongoing obligation

[00:12:17] Speaker 03:
to enforce, I asked counsel because the, again, the entirety of the debtless agreement was produced to us in attorneys' eyes only fashion.

[00:12:28] Speaker 03:
I've asked them if I could cite from it.

[00:12:31] Speaker 03:
I was told I could not because it's dead-signated confidential.

[00:12:35] Speaker 03:
But I will say in general terms that that agreement makes imposed.

[00:12:42] Speaker 03:
No, Your Honor, because it was produced to us even though we had asked

[00:12:46] Speaker 03:
for a stay so we could conduct jurisdictional discrepancy.

[00:12:49] Speaker 03:
That was denied us.

[00:12:51] Speaker 00:
Then we- So you now want to talk about evidence that is not part of the record decided below, not part of the record to us on appeal.

[00:12:58] Speaker 00:
Do you understand what an appellate court does?

[00:13:00] Speaker 03:
Yes, absolutely, Your Honor, I do.

[00:13:03] Speaker 03:
And what I'm saying is that we made an allegation in our complaint that there is not just a purchase.

[00:13:10] Speaker 03:
They keep calling it a purchase agreement.

[00:13:12] Speaker 03:
But we have an allegation in our complaint that is not just a purchase agreement.

[00:13:16] Speaker 03:
It is an agreement with respect to enforcement of those patents that imposes obligations on TASRA to enforce.

[00:13:24] Speaker 03:
And that the locus of that agreement is New York.

[00:13:28] Speaker 03:
Those are inferences to which we are entitled because we have so alleged and because we were denied discovery.

[00:13:35] Speaker 03:
And I am telling you that the discovery has supported it.

[00:13:38] Speaker 03:
Yes, Your Honor, goodbye.

[00:13:51] Speaker 04:
the Court.

[00:13:53] Speaker 04:
As the bench has correctly pointed out, Tessera is a Texas cooperation with its principal place of business in Texas as the two declarations that were submitted under oath recite.

[00:14:13] Speaker 02:
its attorney's office or some attorney that allows it to be there.

[00:14:17] Speaker 02:
But, and again, hypothetical.

[00:14:19] Speaker 02:
Tessera is a company that, you know, manufactures whatever golf clubs.

[00:14:25] Speaker 02:
And all of its manufacturing plants, all the people that work there, all the people that manage it, are in New York.

[00:14:34] Speaker 02:
Is New York a place of business for Tessera and not hypothetical?

[00:14:40] Speaker 02:
We're not, and I'm talking about this for the purpose of general jurisdiction, not personal jurisdiction, because I think it's different there.

[00:14:47] Speaker 04:
Your Honor, if Tessera had manufacturing facilities, employees, and other things, as posed in your hypothetical, of course it could be sufficient

[00:14:56] Speaker 04:
jurisdiction, but only if it was still at home there.

[00:14:59] Speaker 04:
You can have, as the case has made clear, including Perkins, you can have a company which is not incorporated in the State of New York and who does not have its principal place of business there, and under some exceptional situation, as was the case in Perkins,

[00:15:14] Speaker 04:
where you had a company that had to leave the Philippines during the Japanese occupation of the Philippines, World War II.

[00:15:20] Speaker 04:
That was an exceptional case.

[00:15:22] Speaker 04:
Here, there's no exceptional case set forth in the record at all.

[00:15:26] Speaker 04:
And in fact, what the declarations recite, and this is very important, is that no Act II.

[00:15:32] Speaker 04:
Yes.

[00:15:33] Speaker 02:
So this isn't a company that manufactures golf clubs or anything.

[00:15:37] Speaker 02:
This is a patent licensing entity.

[00:15:40] Speaker 02:
or whatever you want to call it, whatever you want to call it, I don't want to get in a fight about this, but they buy patents and then they assert them or ask for licenses.

[00:15:50] Speaker 02:
If that's their business and all of that business is done in New York, and again, hypothetical, there may be different facts you want to talk about, but why wouldn't that be similar to manufacturing golf clubs in New York?

[00:16:02] Speaker 04:
If all they did was license patents and they did nothing at all in Texas in their principal place of business, but they did absolutely everything in New York, there obviously could be a factual scenario that rises to the exceptional case.

[00:16:16] Speaker 04:
I would agree with that.

[00:16:18] Speaker 04:
However, here, and I address the court to the record, the submissions are that none of the activities of the company are directed from New York, from the board or from the parent company.

[00:16:31] Speaker 04:
that with respect to patent licensing and patent litigation, those do not occur in New York.

[00:16:35] Speaker 04:
That's what's in the declaration.

[00:16:37] Speaker 04:
I would point out that I'm troubled by some statements today with respect to whether or not there's an office in Plano.

[00:16:43] Speaker 04:
One of the exhibits that the defendant submitted.

[00:16:46] Speaker 02:
Can you explain to me why Plano is marked confidential in our briefs?

[00:16:49] Speaker 04:
I can't, Your Honor.

[00:16:51] Speaker 02:
I can't.

[00:16:52] Speaker 02:
I mean, you get a lot of confidential markings, and this one is one of the most ludicrous ones I've seen in a while.

[00:16:59] Speaker 04:
Your Honor, there was an exhibit with an address that was produced by the defendants with the address in Texas in Plano that was submitted to the court in opposition to the motion to dismiss.

[00:17:10] Speaker 04:
And the address is 101 East Park Boulevard, Plano, Texas.

[00:17:15] Speaker 04:
With respect, also troubled that we keep hearing references to the sharing of an office in New York.

[00:17:21] Speaker 04:
We are a national law firm with offices in three States and the District of Columbia.

[00:17:25] Speaker 04:
We have a Regis facility in Rye, New York, which is a building with many, many dozens of companies.

[00:17:32] Speaker 04:
We don't share an office with them.

[00:17:34] Speaker 04:
The building has an address.

[00:17:36] Speaker 04:
There are that company and many, many others.

[00:17:38] Speaker 04:
They're not in our office space.

[00:17:40] Speaker 04:
And I think that really goes to the heart of the problem here, because the record is bare of any of this supposed information about decisions being made in New York, control being had in New York.

[00:17:53] Speaker 04:
That's not in the record.

[00:17:54] Speaker 04:
That's information and belief.

[00:17:56] Speaker 01:
I don't know.

[00:17:57] Speaker 01:
In the company, so should we view most factors of favor of the other side?

[00:18:04] Speaker 04:
Your Honor, I think not.

[00:18:06] Speaker 04:
When the allegations are only upon information and belief,

[00:18:12] Speaker 04:
testimony that those allegations are not accurate.

[00:18:16] Speaker 04:
I think the district court at that point has a duty to look at those allegations as to whether they have any basis.

[00:18:23] Speaker 04:
Otherwise, they're made up of whole cloth.

[00:18:25] Speaker 04:
A plaintiff could allege anything on information and belief.

[00:18:28] Speaker 04:
If it's contradicted by the sworn evidence, the testimony, the documents, the information, then I don't think it rises to the level of being due that kind of infringement.

[00:18:39] Speaker 04:
What I would say, and I think very important here, when we read the Palo Alto opening brief and the reply brief, they criticized the district court for getting the standard law and for applying the wrong law.

[00:18:53] Speaker 04:
And I think when the panel reads the Court's decision, you will see that the district court actually used the words and ultimately concluded the following, that the activities of Tesserra in New York, which was the acquisition,

[00:19:09] Speaker 04:
were unrelated to the enforcement of the patents in the form.

[00:19:16] Speaker 01:
So he uses the word unrelated, and then he goes further and says... Does that mean that those acquisitions do not involve the patent that was asserted in Texas?

[00:19:25] Speaker 04:
No, the acquisition does, Your Honor, but here's the issue.

[00:19:28] Speaker 04:
The law is well-settled that when you have a DJ of infringement or non-infringement and validity issues, the question, that lawsuit is about clearing the air.

[00:19:39] Speaker 04:
I think the words have been used.

[00:19:41] Speaker 04:
Clearing the air of the infringement issue.

[00:19:44] Speaker 04:
Acquiring a portfolio of patents in a state has nothing to do with clearing the air in a DJ case about the issue of infringement.

[00:19:56] Speaker 00:
Can I ask just a big picture question here?

[00:19:57] Speaker 00:
more than a minute to kind of figure this out.

[00:20:00] Speaker 00:
Explain to me, just so I make sure I do understand it, why is a judge in the Eastern District of Texas deciding whether the Southern District of New York does or does not have jurisdiction over a particular case?

[00:20:11] Speaker 04:
Your Honor, this is an MDL proceeding.

[00:20:14] Speaker 04:
And it was not our MDL petition.

[00:20:18] Speaker 04:
We actually opposed centralization to the Northern District of California where it was requested.

[00:20:23] Speaker 04:
And the panel decided after we went to the oral argument in Washington, Seattle, Washington, that it should be centralized, in fact, but centralized before the Eastern District of Texas.

[00:20:32] Speaker 04:
So the cases ended up in the Eastern District of Texas.

[00:20:35] Speaker 00:
So what's going to happen to this case if we were to affirm?

[00:20:38] Speaker 00:
What happens to this particular case?

[00:20:40] Speaker 04:
Well, if you were to affirm, then the pending case in the Eastern District of Texas will continue in the Eastern District of Texas, where discovery is ongoing.

[00:20:50] Speaker 02:
What's pending in Eastern District of Texas?

[00:20:52] Speaker 02:
Is it your case?

[00:20:54] Speaker 04:
Yes.

[00:20:54] Speaker 04:
What happened, Your Honor, after?

[00:20:56] Speaker 02:
They could file a declaratory judgment, or they could just defend, but they could also file a declaratory judgment action, I assume, in the Eastern District of Texas.

[00:21:06] Speaker 04:
the Tesserra claims of infringement that are now raised in the Eastern District of Texas after they filed, as we heard, the IPRs.

[00:21:15] Speaker 02:
What is this about?

[00:21:16] Speaker 02:
I mean, there's a PTAB proceeding.

[00:21:18] Speaker 02:
Is it because Texas is going to move, not going to stay the PTAB and move more quickly than the PTAB?

[00:21:24] Speaker 04:
Your Honor, we have an April trial date in these cases.

[00:21:27] Speaker 04:
And the cases, as Your Honor knows, move pretty quickly in the Eastern District of Texas.

[00:21:32] Speaker 04:
discovery, I think, is weeks from completion.

[00:21:35] Speaker 00:
Well, it sounds like you didn't want to be in Texas.

[00:21:37] Speaker 04:
You wanted to be in California, right?

[00:21:40] Speaker 00:
No, no, no, no.

[00:21:40] Speaker 00:
Somebody wanted to be in California?

[00:21:41] Speaker 00:
I don't know.

[00:21:42] Speaker 00:
I heard something about Washington, Seattle, California, Texas, New York, I don't even know.

[00:21:45] Speaker 04:
I apologize.

[00:21:47] Speaker 04:
The Tessera plaintiff in the Eastern District of Texas opposed the petition for centralization to the Northern District of California.

[00:21:55] Speaker 04:
And we said- You want to be in Texas.

[00:21:58] Speaker 02:
I mean, come on.

[00:22:00] Speaker 02:
I mean, we know why you're incorporated in the Eastern District.

[00:22:02] Speaker 02:
You want to be in Texas.

[00:22:03] Speaker 02:
That's fine.

[00:22:04] Speaker 02:
You're allowed to do that as long as you've got proper venues and everything like that.

[00:22:10] Speaker 02:
And they wanted to be in Northern District of California, but they didn't get it.

[00:22:14] Speaker 04:
Well, Palo Alto, who's the party here, wanted to be in the Southern District of New York, which is something I wanted to address with respect to the specific jurisdiction issue.

[00:22:27] Speaker 04:
They're not a New York resident.

[00:22:30] Speaker 04:
And in fact, they chastised Judge Gilstrap in their brief for saying that he focused on the part that they're not a New York resident.

[00:22:37] Speaker 04:
They don't have their principal place of business in New York.

[00:22:40] Speaker 04:
So one might wonder why they brought the case in New York.

[00:22:43] Speaker 04:
They brought the case in New York because they wanted to be able to sue not only Tessera, but Quest, the parent corporation, which owns Tessera and other subsidiaries.

[00:22:53] Speaker 04:
There was the bulk of the dispute below was this alter ego theory of personal jurisdiction, which was rejected and is not on appeal.

[00:23:02] Speaker 04:
But the reason it's important, I think, to understand the scope of that is that's why they wanted to be in the Southern District of New York.

[00:23:08] Speaker 04:
The cases in the Federal Circuit and even the Supreme Court

[00:23:11] Speaker 04:
they look to the residents of the plaintiff as an important factor.

[00:23:15] Speaker 04:
And in this case, Palo Alto is not a resident of New York.

[00:23:19] Speaker 04:
It doesn't have its principal place of business there.

[00:23:21] Speaker 04:
So what is really the interest of the New York courts in this?

[00:23:24] Speaker 02:
Where is Palo Alto's principal place of business?

[00:23:26] Speaker 04:
Northern District of California.

[00:23:29] Speaker 04:
And so it was interesting that everyone was seeking to centralize in the Northern District of California.

[00:23:35] Speaker 02:
And I think Palo Alto... I take it they must do enough business in

[00:23:39] Speaker 02:
Eastern District of Texas to be seated there?

[00:23:41] Speaker 04:
They have a place, a regular and established place of business in the Eastern District of Texas, sir.

[00:23:47] Speaker 01:
This may be a question that I shouldn't be able to answer to you, but this case of transit takes place on the judicial panel of a multi-district litigation in Indiana.

[00:23:58] Speaker 01:
Yes, sir.

[00:23:59] Speaker 01:
And they made the decision as to jurisdiction when they transferred, right?

[00:24:03] Speaker 04:
They made the decision that for pre-trial,

[00:24:06] Speaker 04:
the most convenient place for all parties would be centralized in the Eastern District taxes.

[00:24:13] Speaker 01:
To what extent should that impact our decision in this case?

[00:24:19] Speaker 04:
Well, I don't think it really resolves the issue of whether Tessera is subject to personal jurisdiction in New York, because I think that's a way.

[00:24:27] Speaker 01:
But there is a decision that says it's the case moving on to Texas.

[00:24:32] Speaker 04:
Yes, and it certainly was determined that Texas is a convenient forum, and that the parties could litigate in Texas and get fair and justice.

[00:24:41] Speaker 04:
And Palo Alto itself has a regular and established place of business there, so it's certainly not unfair to Palo Alto.

[00:24:47] Speaker 04:
And I think the panel did

[00:24:48] Speaker 04:
when it did something I don't think the defendants and all of the defendants were supporting centralization by the MDR.

[00:24:57] Speaker 04:
I don't think any of them ever thought that the panel would send them to East Texas, but that's what they did.

[00:25:07] Speaker 04:
No, unless the Court has some questions, I give up my remaining time.

[00:25:11] Speaker 04:
Thank you very much.

[00:25:21] Speaker 03:
Judge Raina, I think your question properly brought us back to the procedural posture of this case and the fact that because we were denied jurisdictional discovery, we are entitled to the benefit of the allegations of our complaint, which allege that their principal place of business is in New York, and that they are managed from New York.

[00:25:42] Speaker 01:
And we have a basis for alleging that, because every document that we... Here's the problem I have with your position.

[00:25:50] Speaker 01:
It's the complaint.

[00:25:53] Speaker 01:
It seems to me that you have appropriate allegations, you have attorney argument, and you have it set up with the right framework.

[00:26:05] Speaker 01:
But there's no fruit hanging off of that framework.

[00:26:08] Speaker 01:
There's no evidence that you back up.

[00:26:12] Speaker 01:
And I think this is a close case.

[00:26:15] Speaker 01:
But the problem I have is that even when I view your complaint in the light most favorable to you, I just don't have anything to work with other than just the allegations.

[00:26:28] Speaker 03:
Well, Your Honor, I think we're entitled to the allegations and all the fair evidence that could be developed to support them.

[00:26:37] Speaker 03:
That's what you're entitled to on the basis when we're doing a motion to dismiss.

[00:26:41] Speaker 01:
And so here.

[00:26:42] Speaker 03:
Well, of course, we we asked for the discovery and we it was withheld from us until after the decision until after we filed our notice of appeal.

[00:26:54] Speaker 03:
So you're right, Judge Moore.

[00:26:56] Speaker 03:
I don't have it in the record here because

[00:26:58] Speaker 03:
Although we asked for it, they didn't give it to us until after we were before this court.

[00:27:02] Speaker 00:
Did you complain to the lower court about that?

[00:27:06] Speaker 00:
Did you ask for reconsideration in light of it?

[00:27:09] Speaker 03:
No, because we had already filed a notice of appeal and it was before this court as a jurisdictional matter.

[00:27:14] Speaker 03:
But again, the allegations of the complaint are that Tassaret is managed from New York by John Scahill.

[00:27:23] Speaker 03:
They actually admit

[00:27:24] Speaker 03:
that John Scahill manages task force from New York, they just say that doesn't count because that's, quote, teleworking.

[00:27:32] Speaker 03:
But when the company doesn't exist except for on paper, except for this manager who's deciding, as Judge Hughes rightly pointed out, where they're going to sue and who they're going to sue, and he's doing all of that from New York, that is where their nerve center is.

[00:27:48] Speaker 03:
That is their principal place of business.

[00:27:51] Speaker 01:
If we had the management team jumpscale in New York on February 2nd, determined and decided that, you know, sushi would be brought in this particular state, or this individual met with others at a restaurant, and there they made the decision to bring another student to California, but we don't have that.

[00:28:15] Speaker 03:
Well, we don't just allege that it's managed.

[00:28:18] Speaker 03:
We allege that every document that is signed by Tessera is signed by John Skatehill listing his New York address.

[00:28:25] Speaker 03:
That's the Certificate of Formation.

[00:28:27] Speaker 03:
That's the registration of the assignment of the patents to Tessera.

[00:28:33] Speaker 03:
That's the registration of Tessera's website, not Quest's website, but Tessera's website.

[00:28:40] Speaker 03:
And that is the agreement with Daedalus.

[00:28:43] Speaker 00:
All of these things are signed by John Skahill in New York.

[00:29:10] Speaker 02:
The Honorable Court is adjourned from day to day.

[00:29:16] Speaker 02:
And you'll please remain seated.

[00:29:19] Speaker 02:
We'll have a quick Q&A with the law clerks and the judges, and then in about five to ten minutes, the Q&A will be judges.