“[T]he time to trial statistics provided in this case, unsupported by additional facts such as the number of cases per judge and the speed and availability of other case dispositions, cannot alone weigh ‘heavily against transfer.’” – CAFC
The U.S. Court of Appeals for the Federal Circuit (CAFC) on Monday continued its trend of granting mandamus directing Judge Alan Albright of the U.S. District Court for the Western District of Texas to transfer a case to the Northern District of California. In the latest order, Google LLC petitioned the CAFC to direct Albright to transfer the case after he denied it based on the expected time to trial “despite the court itself finding that the transferee venue was otherwise more convenient,” wrote the CAFC, adding that this was a clear abuse of discretion.
Express Mobile originally filed suit against Google accusing aspects of Google Ads, Google Slides, and Google Docs of infringing five of Express Mobile’s patents. Google moved to transfer, arguing that the Northern District of California was a more convenient venue because its employees with knowledge of the accused functionalities were based there, while those in their Texas offices were not; because Express Mobile is headquartered in California and had no ties to the Western District of Texas; and because Express Mobile had asserted the same patents in other suits filed in the Northern District of California, and therefore judicial economy considerations favored transfer.
While Albright’s court “agreed that the Northern District of California was more convenient for potential party witnesses, had more of a local interest in the case, and had an advantage over the Western District of Texas in being able to compel non-party witnesses,” the district court denied transfer because it held that Albright’s court “could likely adjudicate the case faster,” wrote the CAFC. Although the court weighed these factors correctly, it erred in finding that the remaining “sources of proof” and “practical problems” factors involved in making a transfer determination were neutral, said the CAFC.
First, both Express Mobile and Google keep their relevant documents in the Northern District of California. Albright’s court concluded this factor was neutral because the location of Google’s documents was irrelevant. Specifically, he explained that “where documents are maintained is not equivalent to where they are stored.” The CAFC said Albright erred by failing to consider “the location of document custodians and location where documents are created and maintained, which may bear on the ease of retrieval.” Overall, the CAFC found this factor slightly favored transfer.
Albright also erred in his analysis of the “practical problems” factor, said the CAFC. Judicial economy weighs in favor of transfer, since the Northern District of California has seen multiple cases filed involving the same asserted patents. While Express Mobile filed several suits in the Western District of Texas, two of those had since been transferred and, while the factor may not weight heavily, “judicial economy considerations in having one trial judge handle lawsuits involving the same patents and technology do favor the Northern District of California,” said the CAFC.
Lastly, the CAFC found that Albright’s determination that the court congestion factor weighed heavily against transfer was not adequately justified. Albright cited data that his time to trial was “modestly” faster than the average time to trial in the Northern District of California, and that it has continued to hold jury trials during the COVID-19 pandemic. The CAFC reiterated:
We have held that when other relevant factors weigh in favor of transfer or are neutral, “then the speed of the transferee district court should not alone outweigh all of those other factors”…. [T]he time to trial statistics provided in this case, unsupported by additional facts such as the number of cases per judge and the speed and availability of other case dispositions, cannot alone weigh “heavily against transfer.”
The district court’s order was thus vacated and Albright directed to transfer the case.
In a recent article lamenting the CAFC’s use of mandamus to seemingly control Albright’s docket, IPWatchdog Founder and CEO Gene Quinn questioned whether the appellate court is actually reviewing these transfer motions de novo, rather than under the proper standard of abuse of discretion. He commented:
A district court generally enjoys broad discretion in making the transfer determination,” the Federal Circuit properly explains in its recent decision in In Re: Juniper Networks, Inc. But even a casual observer can conclude that the Federal Circuit is actually giving no deference at all when reviewing mandamus requests from Judge Albright’s decisions on motions to transfer, and instead is really engaging in de novo review….
Judge Linn further explained in his dissent in In re Google, Inc. that when the district court judge considers all the relevant factors and comes to a determination, it is not for the reviewing court to reweigh the factors differently. Indeed, the Federal Circuit has ruled that the standard for ordering mandamus requires the petitioner “to establish that the district court’s decision amounted to a failure to meaningfully consider the merits of the transfer motion.” In re Barnes & Noble, Inc., 743 F.3d 1381, 1383 (Fed. Cir. 2014). Judge Albright does meaningfully consider the merits; the Federal Circuit just disagrees.
The CAFC granted a mandamus petition for Apple on the same day under similar reasoning.
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Burma BoyNovember 16, 2021 05:37 pm
This isn’t how French law is supposed to work, said the Italian Cardinal.