Albright Rebuked Again by CAFC After Letting Second Transfer Motion Linger

“Courts must give promptly filed transfer motions ‘top priority’ before resolving substantive issues of the case.”

Federal CircuitThe U.S. Court of Appeals for the Federal Circuit (CAFC) ruled on March 8 that Western District of Texas Judge Alan Albright’s failure to rule on a motion to transfer by Tracfone Wireless, Inc. was “strikingly similar to circumstances from the same district court last month in SK hynix,” which the court ruled amounted to “egregious delay.” Unlike SK hynix, Inc., F. App’x 600 (Fed. Cir. 2021), where the CAFC stopped short of granting a writ of mandamus, here, the petitioner’s writ of mandamus was granted and a stay of proceedings regarding all substantive issues was ordered until a decision is rendered on the motion to transfer.

Transfer Requests Ignored

The order was in response to a petition for writ of mandamus by Tracfone Wireless asking the CAFC to either direct the district court to transfer Precis Group LLC’s patent infringement suit against Tracfone Wireless to the Southern District of Florida, or in the alternative, to direct the district court to stay proceedings in order to rule on the motion to transfer. Precis group responded to the writ of mandamus and took “no position regarding the relief requested.” Precis Group had filed a suit against Tracfone Wireless in April 2020, alleging patent infringement. In response, Tracfone Wireless moved to transfer the case on June 22 and the motion was fully briefed by July 14. Shortly after Tracfone Wireless filed their motion to transfer, the district court issued a scheduling order for discovery, a Markman hearing, and the start of trial. On October 1, Tracfone Wireless motioned the district court to stay all proceedings pending the resolution of its venue motion. By December 21, Tracfone Wireless had still not heard from the court on either the motion to dismiss or the on the motion to transfer and moved for a decision on its motion to transfer before the Markman hearing scheduled for December 29. The district court again failed to rule on Tracfone Wireless’ request and instead conducted the Markman hearing as scheduled. On March 2, 2021, Tracfone Wireless had still not received a ruling on any of its motions and filed a petition for writ of mandamus with the CAFC.

‘Arbitrary Refusal’

The court noted that this case presented “strikingly similar circumstances” to the SK hynix case last month, which the CAFC held was an “egregious delay and blatant disregard for precedent.” Citing In re Google, No. 2015-138, 2015 WL 5294800 (Fed. Cir. Jul. 16, 2015), the CAFC explained that the trial court’s failure to act on a fully briefed motion for roughly eight months and its decision to proceed with discovery and claim construction “amounted to an arbitrary refusal to consider the merits of the motion.” The CAFC decisions in both Google and SK hynix are supported by the principle “[t]hat district courts must give promptly filed transfer motions ‘top priority’ before resolving substantive issues in the case,” said the court. In re Horseshoe Entm’t 337 F.3d 429 (5th Cir. 2003).

The CAFC granted Tracfone Wireless’ petition for writ of mandamus, which compelled the district court to issue its ruling on the motion to transfer within 30 days and ordered the district court “to stay all proceedings until such time that it issues a ruling on the motion to transfer that provides a basis for its decision that is capable of meaningful appellate review.”



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Join the Discussion

12 comments so far.

  • [Avatar for Anon]
    March 19, 2021 12:17 pm

    Thanks __tr__, and your comments are fair enough.

    I happen to agree (if only in part) that Judge Albright here did himself and everyone else a disfavor by not ruling in a timely manner. Clearly given his response upon being chastised, he has always had the capability of ruling in a timely manner.

  • [Avatar for __tr__]
    March 19, 2021 10:35 am

    @Anon, I am going to preface this by saying I am not an expert at civil procedure, but here’s my understanding. I am not of the kind that believes transfer is required. The judge absolutely has discretion to decide which forum is the most convenient.

    But, when a judge refuses to rule on a transfer motion and simultaneously sets dates for discovery and hearings on other issues, it is prejudicial to the transfer motion because it leads the parties to take actions that will be inconvenient if the transfer is ultimately granted. It therefore becomes a factor favoring against another venue being more convenient.

    And regardless of what you think about the politics of the patent world and why Judge Albright may want to keep those cases in his jurisdiction, it clouds the ultimate judgment. It works against the purpose it is trying to serve because the eccentricity of the behavior relative to other courts leads to more and more challenges to the decisions being made. If Albright wants to keep those cases he can, but needs to make the legal decision and articulate reasoning why it is proper.

  • [Avatar for Anon]
    March 17, 2021 07:50 pm


    I have in the past found worth in your comments. Your engagement would be appreciated.

  • [Avatar for Michael Shore]
    Michael Shore
    March 16, 2021 03:20 pm

    Albright is a judge who believes in the 7th Amendment. Not a single judge at the Fed Cir cares a whit about the 7th Amendment. They were put on that court to kill patents for Big Tech monopolists and any judge who gets in the way of that is going to get “rebuked” or otherwise criticized. The Federal Circuit just needs to be renamed the Google Circuit. The only fix at this point is to remove the Fed Circuits exclusive jurisdiction over patent cases. Then at least Big Tech has to buy every court instead of just one.

  • [Avatar for Anon]
    March 15, 2021 12:04 pm


    I tend to agree with you that Judge Albright is NOT doing himself any favors by dallying on these matters to to point that the CAFC rebukes him.

    That being said, are you of the kind that transfer is required, or is the Judge (as to the result of the transfer decision) acting within his discretion?

  • [Avatar for __tr__]
    March 13, 2021 05:18 pm

    Regardless of politics, there is just no logical argument. Where the other party is not even taking a position, it seems like a clear abuse of discretion to fail to rule on the matter while clearly diving into other aspects of the case.

    I wonder why the CAFC would issue this opinion as “nonprecedential” given SK hynix.

  • [Avatar for Anon]
    March 13, 2021 05:07 pm

    Mr. Malone,

    It may be that someone is not “following the script.”

    But that would be a sign of that dreaded “conspiracy theory” thinking, now wouldn’t it?


  • [Avatar for Josh Malone]
    Josh Malone
    March 13, 2021 03:14 pm

    Why is the Federal Circuit upset that a judge is willing to try a case? Abuse of discretion is when a judge dumps a case on another judges docket because he is lazy. Trying a case is not abuse of discretion, it should be applauded.

  • [Avatar for Pro Say]
    Pro Say
    March 13, 2021 09:43 am

    “I wonder what the motive is behind not making these decisions.”

    Maybe he simply enjoys poking a stick in the eyes of the innovation killers.

    Understandable, right?

  • [Avatar for Anon]
    March 13, 2021 09:23 am

    The district court has now complied with the compelling from the CAFC.

    Provided by the poster Ben at Patently-O:

  • [Avatar for PAUL MORINVILLE]
    March 13, 2021 03:45 am

    Tracfone has dozens of retsil stores in WDTX. The case should not be transfered. The corrupt CAFC would ensure it is though. I would do the same and just give them a pocket denial to save everyone time and cost and to avoid an unfair decision at the pen of corrupt CAFC judges.

  • [Avatar for __tr__]
    March 13, 2021 12:22 am

    Excellent summary!

    I wonder what the motive is behind not making these decisions.

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