Is Judge Albright’s Role Reexpanding to Include the Austin Division?

In what may foreshadow upcoming changes to case allocations in the Western District of Texas, Judge Alan Albright of the Waco Division appears to have revived his former practice of retaining cases transferred from the Waco Division to the Austin Division following granted Section 1404 motions (i.e., convenience transfers).

In his first years on the bench, Judge Albright habitually retained cases transferred out of Waco to the “sister” Austin Division on his personal docket. As one of the more notable examples, all three of the (much-covered) VLSI v. Intel litigations were transferred to Austin and retained by Judge Albright; two of the three cases were then retransferred back to Waco to allow trial to timely proceed, notwithstanding COVID-related closures in Austin.

A Recent Change

But in November 2021, Judge Albright reassigned all remaining cases that he had previously retained to the two sitting Austin Division judges. Similarly, all further cases transferred from Judge Albright’s Waco court to Austin were also randomly assigned, and no longer retained. However, in a recent return to earlier practice, over the last 30 days, Judge Albright has retained at least three cases transferred from Waco to Austin.

The first retained case, Spacetime3D v. Apple Inc., involved Apple’s motion to transfer from Waco to Austin. Judge Albright initially denied Apple’s motion without prejudice to later renew, on the ground that “courts enjoy greater discretion in deciding intradistrict transfer motions than inter-district motions.” Apple then successfully pursued mandamus relief from the U.S. Court of Appeals for the Federal Circuit, arguing that Judge Albright could not resolve intradistrict transfer motions for convenience after resolving other case milestones such as claim construction; the appellate court directed Judge Albright to “to timely decide the transfer motion before proceeding to further substantive matters.” On May 17, Judge Albright then granted Apple’s motion to transfer to the Austin Division. However, in granting Apple’s motion to transfer to Austin, Judge Albright also retained the case.

In the second case, AK Meeting IP LLC v. Lifesize, Inc., Lifesize moved to transfer from Waco to Austin, and, after an initial venue discovery period, Plaintiff AK Meeting agreed to the transfer. See AK Meeting IP LLC v. Lifesize, Inc., No. 1:23-cv-00566, Dkts. 6, 8, 24 (W.D. Tex.). Judge Albright then granted the agreed transfer to Austin on May 19, but retained and stayed the case pending notice of Defendant’s bankruptcy. See id. Dkts. 29, 31.

In the third case, Immersion Corporation v. Meta Platforms (DISCLOSURE: The authors are among counsel of record to Immersion in this matter), Meta moved to transfer from the Waco Division to the Northern District of California, or in the alternative to the Austin Division. See Immersion Corp. v. Meta Platforms, Inc., No. 6:22-00541, Dkt. 20 (W.D. Tex.). In some contrast to above habitual transferee Apple—which was the subject of significant criticism from Judge Albright in a prior decision, Meta and its predecessor Facebook had previously been praised by Judge Albright for “exceptional candor” in support of its transfer bids, and had won its last six motions to transfer (all to the Northern District of California). See, e.g., AlmondNet, Inc. v. Meta Platforms, Inc., No. 6:22-cv-01205 (W.D. Tex.); Gentex Corp. v. Meta Platforms, Inc., No. 6:21-cv-00755 (W.D. Tex.).

However, on May 30, 2023, Judge Albright issued a 35-page order denying Meta’s motion to transfer to California, and instead transferred the case to the Austin Division; in doing so, Judge Albright retained the case on his docket. See Immersion Corp. v. Meta Platforms, Inc., No. 6:22-cv-00541, Dkt. 88 (W.D. Tex.) (public redacted version) at 35. Interestingly, the last time Meta/Facebook was transferred to the Austin Division was the Voxer v. Meta case filed in 2020, which, after initially being retained by Judge Albright, was then reassigned to Judge Lee Yeakel as part of the above-mentioned November 2021 wave of reassignments. See Voxer, Inc. v. Meta Platforms, Inc., No. 1:20-cv-00655, Dkt. 155 (W.D. Tex.). Judge Yeakel presided over a trial in September 2022 that resulted in a $175 million infringement verdict against Meta.

Will Albright Move to Austin?

The renewed pattern of Judge Albright retaining cases transferred to Austin may indicate that Judge Albright will be taking a more active role in the Austin Division going forward, in light of newly created need. After 20 years of service to the Western District of Texas, Judge Yeakel retired from the bench on May 1, 2023. Presumably pending a more permanent arrangement, the substantial majority of Judge Yeakel’s caseload was reassigned to a stopgap measure denominated “Docket II.” Then, just last week, on June 7, 2023, several Docket II patent cases (including several cases originally filed in the Austin division) were reassigned to Judge Albright.

Furthermore, recent announcements from Texas Senators John Cornyn (R-TX) and Ted Cruz (R-TX) indicate that they are presently seeking nominations to fill a Western District judicial vacancy in the El Paso Division, but not the Austin Division. This may be a further indication—consistent with certain recent speculation from other commentators—that the Austin Division vacancy may be filled by Judge Albright (who maintains a residence in the Austin area).

Regardless of which judge ends up filling the Austin vacancy, practitioners and in-house IP counsel should continue to monitor developments in the Western District of Texas, as the venue is likely to continue to remain an active center of patent litigation now and into the foreseeable future.

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Author: NiroDesign