by Dennis Crouch
The Federal Circuit has been extremely active over the past few years in hearing mandamus petitions filed under the convenient venue provisions of 28 U.S.C. 1404(a). Most often, these petitions have come from patent infringement defendants who were sued in Judge Albright’s Waco court. To be clear, these are cases where venue is proper, but where the defendant argue that a different venue will be clearly more convenient:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.
28 U.S.C. 1404(a). Convenient venue is not a patent-specific doctrine and so the Federal Circuit follows the law of the regional circuits when deciding these cases. For cases out of Texas, this is 5th Circuit law. The 5th Circuit very rarely decides mandamus cases, so the Federal Circuit has actually been substantially developing the law in the interim. But, the 5th Circuit recently issued a mandamus denial that should tend to help Judge Albright (and other patent law loving district court judges) keep their patent cases.
In re Planned Parenthood Fedn. of Am., Inc., 52 F.4th 625 (5th Cir. 2022).
This case started as a qui tam false claims act against Planned Parenthood–alleging millions of dollars of false or fraudulent Medicaid claims. The case was originally filed in Amarillo (N.D.Tex.), and Planned Parenthood moved for a transfer of venue to Austin (W.D.Tex) as a much more convenient forum. The district court denied the motion and Planned Parenthood filed this mandamus petition.
The 5th Circuit has denied the petition on several grounds. Although all three members of the panel agreed to the denial, only one other judge joined Judge Elrod’s decision (Joined by Judge Graves; with Judge Ho concurring in judgment).
The opinion walks through several important elements of 5th Circuit venue-mandamus jurisprudence, but the opinion repeatedly returns to the broad discretion given to district courts in deciding convenient venue questions:
We reiterate that district courts have broad discretion in deciding motions to transfer; they need only grant such a motion where the evidence demonstrates that the destination venue is “clearly more convenient” than the chosen venue. We review that decision “only for clear abuses of discretion that produce patently erroneous results.” The district court carefully considered each of the private and public interest factors, ultimately concluding that they do not weigh in favor of transfer. The standard for reversing that holding is high.
Id. These statements are all found in prior precedent, but the forceful new precedent may shift Federal Circuit’s doctrine.
The Federal Circuit has been reticent to give Judge Albright credit for his familiarity with technology and patent law (as well as that of his magistrate judge). In Planned Parenthood, the Amarillo district court had noted his familiarity with the law as one factor for keeping the case. On mandamus, the appellate panel found no abuse of discretion with that approach.
One common factor analyzed by the courts is location of the evidence. Here, the appellate panel explained that factor can be important, but not where the “vast majority of the evidence [is] electronic, and therefore equally accessible in either forum.” In its prior precedent of Volkswagen, the 5th Circuit had placed greater weight on this factor, but that was because the evidence was “physical in nature.”
The court also felt it was appropriate to take into account the low cost of staying in hotels and eating in Amarillo as compared to Austin. Although Waco may be a bit more costly than Amarillo, it is so much cheaper than Silicon Valley or Delaware. “[W]e cannot say that this analysis is based on incorrect legal principles or erroneous factual findings such that it would constitute an abuse of discretion.”
A key factor in this caw that weighed against transfer is that Planned Parenthood first made a 12(b)(6) motion to dismiss the case and then, after losing that motion, filed its motion to transfer. “inexcusable delay” can strongly weigh against transfer.
OT, but this explains why Alice, KSR, and so forth are so bad.
link to youtube.com
Been dipping into the forbidden pool of the supreme evil one, Mr. Thomas Sowell, have we NWPA?
You should check out his book “Basic Economics” (or “An Experimental Cure for Leftism”). It’s quite good. His history of the colonial and civil war era Merica is quite excellent as well. Before I heard the book on tape of it I was always confused as to what people meant by the whole supposition that inner city/hood culture was an outgrowth of old school lower class white southern culture, and how this would have come to be. He lays the whole thing out quite clearly. The “black rednecks and white liberals” book follows right along.
While we’re on the subject, a little something greg, ben, mm, et al. might enjoy. It’s a clip from one of the dudes involved in 60’s civil rights goings ons (as interviewed by the jewish dude david hoffman, filmmaker) that explains much of what was going on, and what all was the situation, and the context etc etc. Wherein among other things, he explains the origin of the whole “great white hope” phrase, and what it is referring to, and when civil rights activists first realized that repubs were wolves, but dems were just as bad as foxes.
link to youtube.com
Sowell is hilarious.
I (semi) wonder though, are there any “anti-Sowell” exchanges that provide counters to his positions? Or is this one of those ‘hide-in-basement/ign0re’ type of things for the Liberal Left?
“I (semi) wonder though, are there any “anti-Sowell” exchanges that provide counters to his positions? Or is this one of those ‘hide-in-basement/ign0re’ type of things for the Liberal Left?”
There’s people who have tried. You want to talk about lolable watches, some of those are definitely that.
Thanks for pointing out that David Hoffman is Jewish. That’s something that should never go unmentioned.
As to Sowell? Yes, ye sends a tingle up conservative legs. No, he is considered a very serious economic or political thinker. He is mostly considered to be a clever crank by the big brains on the left AND right.
For some of that right flavor of dismissing Sowell, here is Claremont- noted hippie hotbed- discussing Sowell’s take on Marx. It ain’t pretty for Sowell.
link to claremontreviewofbooks.com
“That’s something that should never go unmentioned.”
Agreed, that’s probably why he mentions it in every other vid. Max virtue nobility points 4 him.
“He is mostly considered to be a clever crank by the big brains on the left AND right.”
Guess their brains got too large and wrapped around to tard horseshoe theory style.
“For some of that right flavor of dismissing Sowell, here is Claremont- noted hippie hotbed- discussing Sowell’s take on Marx. It ain’t pretty for Sowell.”
Muh lefty doesn’t understand Sowell and wrote some cringe that “lol doesn’t look good for Sowell”. This sht is like pottery. Even trying to read that article is a slog through unnecessary big obscure words. A fa th ead writing about a smart man writing about a largely unemployed fa th ead.
But maybe set that sideshow work aside, and get to his real works.
link to en.wikipedia.org
Well, that’s an interesting connection
It’s interesting that Prof. C. didn’t bring up the one part of the CA5 opinion that actually discusses the CAFC jurisprudence—including a factor that’s fairly relevant to both WDTX and Fintiv—albeit only toward the very end of the opinion.
That part is on p. 7, in section III.B.2. It discusses court congestion as one of the public interest factors. CA5 makes a somewhat-veiled swipe at how CAFC has addressed this factor by noting that “some courts have held that this factor is ‘speculative.’ In re Genetech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009).” (emphasis added).
My reading of this statement is that CA5 takes a dim view of CAFC’s approach. So, maybe, in light of this, CAFC will adjust its approach going forward.
Thanks for this. That rather discredits my point in 1.1.1.1 below. Evidently these CA5 judges are (at least somewhat) aware of the CAFC’s application of their precedents.
Happens FAR more than Greg lets on.
(now if I could add some hidden links…)
This decision will have no impact on the Fed Cir. In the case where they have reversed J. Albright via mandamus, it was because the WDTX had done things like discount witnesses in the transferee forum or finding that the WDTX had a localized interest in the case when the patent troll plaintiff set up a mailbox office in Austin to make it look like it does business there.
We reiterate that district courts have broad discretion in deciding motions to transfer; they need only grant such a motion where the evidence demonstrates that the destination venue is “clearly more convenient” than the chosen venue. We review that decision “only for clear abuses of discretion that produce patently erroneous results.” The district court carefully considered each of the private and public interest factors, ultimately concluding that they do not weigh in favor of transfer. The standard for reversing that holding is high.
A big defendant is almost always going to have more potential witnesses in their preferred home forum and those “potential” witnesses are very likely selected for purpose of the motion — not for the knowledge but for their location.
Regardless, the burden for mandamus relief is very high and the presiding judge is supposed to get great deference in his/her findings. This is not happening at the Federal Circuit. Rather, the CAFC nitpicks Albright’s findings to justify the Federal Circuit’s preordained outcome.
Nothing that Albright has done has rise to the level of “clear abuse of discretion.” The fact that the Federal Circuit would have come out differently doesn’t establish clear abuse of discretion.
I’d go so far as to suggest the Fed Cir is rewriting the special patent venue statutes … essentially deleting the second option of the ‘or’ test
>Nothing that Albright has done has rise to the level of “clear abuse of discretion.” The fact that the Federal Circuit would have come out differently doesn’t establish clear abuse of discretion.
+1
For whatever little it is worth, I also agree that it is hard to look at Judge Albright’s various fact findings and judgment calls in these cases as “abuses of discretion.” This is not really how mandamus is supposed to work. Indeed, the more I think on it, the more I wonder if the en banc CA5 did not get Volkswagen wrong, and the original panel got it right.
As I noted below, the rash of mandamus orders is fairly transparently motivated by the Chief Justice’s call to action. To a certain extent, this is like squeezing a balloon. The CAFC is distorting mandamus law to deal with another distortion (patent dockets) in which the SCOTUS has expressed concern. If you take away the mandamus distortion without resolving the patent docket distortion, you will just see some other distortion emerge in some other part of the judicial system.
… unless you hear a “pop.”
See Albright’s pushback.
>the Chief Justice’s call to action
The Chief’s illegal call to action. Congress has specifically weighed in on what ‘are’ and ‘are not’ fair venues for patent litigation.
Spoiler alert: Congress has said that, if you are a trillion dollar company with offices in every medium and large city, it’s fair to be hauled into just about any district court.
Not that I agree with the Chief Justice, but what about his comments make them (apologies if I am over-reading you) illegal?
Congress has said that, if you are a trillion dollar company with offices in every medium and large city, it’s fair to be hauled into just about any district court.
Right, and the Chief’s remarks do not contradict that. The Chief is not complaining about venue, but rather about assignment to particular judges within a venue (pg. 6, “Senators from both sides of the aisle have expressed concern that case assignment procedures allowing the party filing a case to select a division of a district court might, in effect, enable the plaintiff to select a particular judge to hear a case”). While you are correct that Congress has provided rules that permit plaintiffs broad venue discretion for large corporate defendants, Congress has not explicitly or implicitly expressed an intention to allow plaintiffs to select a particular judge within those venues. That, rather, is a function of local court rules, which are not set by Congress (but which are entrusted—28 U.S.C. § 2072(a)—to the SCOTUS to set). Nothing, in other words, in the Chief’s remarks run counter to the expressed will of Congress.
Incidentally, the same Congress that set wide latitude to defendants to choose venues when suing large, corporate defendants also created a mechanism to change that venue (28 U.S.C. §1404) in the interest of justice. In other words, Congress was not absolutely univocal that the plaintiff’’s venue choice is sacrosanct.
Divisional forum-shopping in Texas is getting a bit of attention in the national debate over district judges issuing nationwide injunctions.
An amicus brief from Prof. Vladeck pointed out how filers in several Texas district courts can select individual judges to hear their cases, and the evidence that the Texas government does this in politically-charged cases the same way plaintiffs do in patent cases.
link to supremecourt.gov
The issue came up briefly at oral argument this week.
link to twitter.com
There is of course a more cynical way of viewing these cases.
Texas is a conservative state, and it is popular among conservatives to hate planned parenthood. Thus, the conservative Texas judges did not want the venue moved to a more liberal one – Austin (admittedly I am not sure how conservative these judges are or how liberal the court in Austin is likely to be, so perhaps I am wrong).
Similarly, there seems to have been bipartisan efforts in Congress and the Courts to weaken patent protection (or at least that has been the effect of much of their actions until now). There seems to be growing frustration with Judge Albright, possibly in-part because he is perceived as being favorable for patent protection, and so many appellate judges are likely eager to find an excuse to remove cases from his docket at any opportunity they get.
Those may be the true underlying motivations behind these decisions. The rest, unfortunately, may be just veneer.
Chief Justice Roberts (following the calls of Sen. Tillis and others in the elected leadership) has already sent the message that the concentration of patent cases in a single judge’s docket is not desirable. I do not agree with the Chief on this point (if one judge is better able than others to handle patent cases, it only makes sense that s/he should be handing relatively more of them), but the judiciary’s commitment to the idea of generalist (not specialist) judges is long-standing, if not exactly well-founded.
So far—having received the Chief’s message—the lower ranks of the judiciary have devised two methods of dislodging this concentration: (1) CAFC mandamus; and (2) random assignment of judges to cases in the WD Tex by the WD Tex chief judge.
Even if one or both of these mechanisms for redistribution are undone, the more fundamental reality of the Chief’s directives will remain. Therefore, you can expect that other mechanisms to achieve this particular redistribution will emerge and persist until the Chief’s desired outcome is achieved. He ultimately holds all the cards, so he will get his way unless he loses interest.
I think Judge Albright may have been in the cross-hairs of Sen. Tillis and Judge Roberts when they expressed their views (which is sort of my point – I am not so sure that the political motivation behind Sen. Tillis was strengthening our patent system). Perhaps, I am wrong – I have no concrete evidence to back my impression, but that is my impression.
So far—having received the Chief’s message—the lower ranks of the judiciary have devised two methods of dislodging this concentration: (1) CAFC mandamus; and (2) random assignment of judges to cases in the WD Tex by the WD Tex chief judge.
(2) is a proper exercise of the authority of WDTex Chief Judge. (1) is not proper because they are rewriting well-settled law.
He ultimately holds all the cards, so he will get his way unless he loses interest.
Roberts holds far fewer cards than you think.
Roberts holds far fewer cards than you think.
Interesting. Do you care to elaborate? Where in the working of the U.S. judicial conference do you expect that the Chief’s intentions will run aground?
Where in the working of the U.S. judicial conference do you expect that the Chief’s intentions will run aground?
Show me where Roberts has the right to rewrite the rules that govern how the WDTex handles cases?
As to the standard of review for granting mandamus relief, Roberts has a single vote out of 9 as to what that standard should be.
Roberts has a single vote out of 9 as to what that standard should be.
Ah, now I understand the point of disagreement. I certainly agree that if Chief Justice Roberts is in disagreement with his fellow justices about this (or any other) issue, then his is only one vote among nine.
I assume (perhaps unwisely) that the Chief speaks for all of his colleagues here. The idea that judges should be generalists is (regrettably) widespread among the judiciary, and I am dubious that this is actually a point of disagreement among the justices.
Show me where Roberts has the right to rewrite the rules that govern how the WDTex handles cases?
28 U.S.C. § 2072(a)
Greg (Dozens) is at it again with hidden hyperlinks to radical Left (and radically incorrect) propaganda pieces.
For shame.
Who are you messaging, Greg?
This is certainly one bar that’s needed raising.
That said, it’s not like the CAFC has any problem jumping over any bar they want to.
You know; just like world-class high jumpers do.
Your link points to the wrong 5th Circuit Planned Parenthood case (it links to a 2013 opinion). Should point to the below instead:
link to ca5.uscourts.gov
Thanks!!
Double Thanks (consider post 3 dialed back a bit)
Prof.,
Did you read a different case than the linked case?
Your asserted points are not as you present.
That being said, my prior posts with emphasis that THIS (the patent angle — as opposed to any ab0rtion angle), is a matter of LOCAL discretion (opposite of what Greg “I-Use-My-Real-Name-Except-When-I-Don’t-And-Use-Dozens” DeLassus would intimate.
The (obvious) takeaway is that the CAFC has been engaged in a Results-driven mode (something no doubt learned from the Supreme Court).
So aside from the difficulty of pulling from the instant ab0rtion decision the asserted points, it is better to recognize my previous posts on this topic.
Here, the appellate panel explained that factor can be important, but not where the “vast majority of the evidence [is] electronic, and therefore equally accessible in either forum.”
It would be useful for the SCOTUS to weigh in on this point. On the one hand, it seems intuitive enough that the location of documentary evidence should not matter when the documents themselves are not really in issue, and the trier of fact is simply going to read the electronic version off the web. On the other hand, the SCOTUS has given us a list of points to consider when weighing these transfer motions, and it is not for the CA5 to re–write the SCOTUS’ instructions. It is time for SCOTUS to take a case to address whether a change in technology since last they addressed this particular point of law merits a change in the legal analysis that should be applied.
Documents aren’t the only evidence. Forcing corporate representatives and other deponents to travel etc.
Also, it makes obvious sense that filing papers in a forum, deciding you don’t like resulting orders, and then filing to change forum is not a desirable sequence, but don’t some of these courts enforce aggressive scheduling orders whilst sitting on transfer motions?
In that situation, don’t lawyers have to litigate the case regardless of the timing of the transfer motion?
Agreements can be made, and alternatives are available for depositions, especially after covid.
Documents aren’t the only evidence.
Indeed not. Location of the evidence (or, more precisely, as the SCOTUS phrases it “the relative ease of access to sources of proof”) is just one of the Gulf Oil factors. This particular factor and the “cost of attendance for willing witnesses“ factor, however, are the ones that are most affected by advances in telecommunication. It is time for the SCOTUS to give more up-to-date direction as to how advances in technology have affected these factors.
… and another hidden link here.
Most venue transfer decisions in patent cases already regard location of documents as a relatively small factor anyway, so I don’t think the Fifth Circuit’s decision is going to result in a sea change in outcomes. The location of actual human beings, i.e., witnesses who will physically have to appear and testify at trial in Texas, is the far more weighty factor that almost always decides these transfer motions. The common factor across the patent cases being ordered out of WDTX has been that the vast majority of likely trial witnesses reside in coastal states, far away from the forum. The Fifth Circuit’s slight tweak on how electronic evidence is viewed has no impact on this dynamic, and is thus unlikely to substantially change outcomes.
TOTALLY AGREE WITH LODE_RUNNER
Have you been under a rock for the last couple of years (handling people on a remote basis — by the courts — is no longer a difficult thing)
Apparently you’re the one under a rock. TRIALS are held IN PERSON. Witnesses typically do not participate in pre-trial HEARINGS, which are the only proceedings in district court that may be done remotely (e.g., Markman hearings). Trial can last weeks; taking people far away from their homes (e.g., to Waco Texas) is HIGHLY inconvenient — especially when the trial could be held in a venue close to where most of the witnesses and their families reside. When is the last time you set foot in a federal district court for a trial? Never?
Trial can last weeks; taking people far away from their homes (e.g., to Waco Texas) is HIGHLY inconvenient — especially when the trial could be held in a venue close to where most of the witnesses and their families reside.
Oh Lord. How long are most witnesses on a stand? A day, maybe two? Big companies frequently have their employees travel for many reasons other than testifying in litigation. Not a big deal. It is marginally more convenient — not clearly more convenient, which is the standard.
> Oh Lord. How long are most witnesses on a stand.
The inconvenience on trial witnesses having to travel to remote forums is significant and largely independent of the expected length of their testimony. Trial witnesses often have to block-out a full week or more to remain physically present in the forum, even if their testimony is expected to be short. This is because even with careful coordination and sequencing, you never know when those witnesses will actually take the stand. I’ve seen cases where witnesses who were scheduled to testify for only 15 minutes on a Monday ended up not taking the stand until the following week (because of any number of developments/delays in the trial, others testifying out of order, court dealing with objections or hearings on other matters, etc.), but those witnesses had to remain on “standby” in the forum the whole time. This is pretty much the norm in federal district court trials. In some cases, trial witnesses can be called separately in both the plaintiff’s and defendant’s case, or a party can reserve the right to recall a witness later, requiring that they be present for a huge chunk (or all) of the trial.
L,
See PatentMom at 2.1.1.
> See PatentMom at 2.1.1.
The accommodations referenced at 2.1.1 were designed to deal with remote witness testimony during the COVID era, and primarily for discovery/depositions. Trial testimony is different, and with COVID mostly in the rearview mirror, parties in significant cases are expected to make testifying witnesses physically present (among other things, so the jury can better evaluate credibility and demeanor). If a party for some reason had to resort to accommodations for remote trial witness testimony (assuming the court allowed it), that would actually be a strong factor supporting a venue transfer to the more convenient forum.
If a party for some reason had to resort to accommodations for remote trial witness testimony (assuming the court allowed it), that would actually be a strong factor supporting a venue transfer to the more convenient forum.
O.k., but that is all the more reason why it is time for the SCOTUS to give the Gulf Oil factors another look. The idea of in-person witness testimony during trial was neither inscribed in the Constitution nor handed down to Moses on Mt. Horeb. It is a long-standing practice, but long-standing practices can and do evolve in view of technology.
Should the court insist on in-person testimony with such emphasis that it merits relocation of the trial? Maybe. I am not really prepared to come down one way or the other on that point, but the SCOTUS can and should answer it. Let the question be well briefed, and let the SCOTUS decide whether long-standing practice should be continued or not in view of advances in telecommunication.
… neither inscribed in the Constitution…
Well, except with regard to prosecution witnesses in criminal trials, I suppose that I should specify. The very fact, however, that the Constitution troubles to specify an in-person requirement in that circumstance but not others makes clear that the courts are free to be more relaxed in other circumstances, should they so choose. I take no position on whether they should so choose, but the question is ripe for consideration at this point in time.
“ designed to deal with remote witness testimony during the COVID era,”
That’s kind of the point (and it’s called ‘learning from history).
“that would actually be a strong factor supporting a venue transfer…”
Quite the opposite (see: lessons learned).
Interesting. I look forward to seeing whether the new CA5 precedent shifts the CAFC’s propensity to grant mandamus relief in WD Tex cases.
Doubtful — as was made clear in the Texas Judge’s last gambit, the CAFC was not following 5th Circuit precedent anyway, and had been imposing its own (federal) view.
Nothing here rises to a level to impact that (and the facts of THIS case provide plenty of distinguishable drivers).
Doubtful — as was made clear in the Texas Judge’s last gambit, the CAFC was not following 5th Circuit precedent anyway, and had been imposing its own (federal) view.
Agree on your take regarding the CAFC not following 5th Circuit precedent. But the 5th Circuit pushing back should give the CAFC some pause — not that I suspect that it will, only that it should.
Honestly, who knows whether the CA5 are pushing back against the CAFC here? Who knows if these three CA5 judges are even aware of how the CAFC applies CA5 precedent? When the CA5 refuses to grant Planned Parenthood’s transfer request, that is an easy outcome to explain without resorting to inter-circuit dynamics as part of the explanation.
Who knows if these three CA5 judges are even aware of how the CAFC applies CA5 precedent?
You should have been at the conference at the patent law conference in Texas in September. The Federal judges are not unaware of what is going on. Albright is a respected judge — not some maverick.
Those that drink the koolaid are not likely to accept that, Wt.
Greg’s 1.1.1.1 rings in the “Don’t Question The Science” tones.
Quite the contrary, the “inter-circuit dynamics” (that is, the Ends-driven CAFC actions) are very much AT point.
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