by Dennis Crouch
In re Apple (Fed. Cir. 2020)
The Federal Circuit has granted Apple’s petition for writ of mandamus and ordered the infringement lawsuit against the tech-giant be moved from W.D. Texas (Waco) to N.D. Cal. — finding that the company’s convenience is paramount. The majority opinion was written by Chief Judge Prost and joined by Judge Hughes. Judge Moore wrote in dissent. Judge Albright is the W.D. Tex. Judge who had refused to transfer the case.
28 U.S.C. § 1404(a) (partially) codified the common law doctrine of forum non conveniens. The statute:
(a) 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). The statute provides the original district court with discretionary authority to transfer a case to another district upon a showing that a different venue is “clearly more convenient.” Although that abuse-of-discretion might be reviewed on appeal after final-judgment in a case, the error would probably be seen as harmless by that point. (Court’s don’t order new trials on convenience grounds unless they actually and meaningfully impacted the trial.) Thus, in a number of cases the Federal Circuit has granted mandamus on § 1404(a) issues. Still, the approach is controversial because (1) district courts are given substantial deference regarding their 1404(a) determinations; and (2) mandamus is such an extraordinary writ.
Writ of mandamus is “an extraordinary remedy available [only] to correct a clear abuse of discretion or usurpation of judicial power.” Slip. Op. Note here that the standard of “clear abuse of discretion” goes beyond ordinary “abuse of discretion.” As Judge Moore wrote in dissent: “there is no more deferential standard of review than clear abuse of discretion.” The appellate panel found that high standard met.
In my experience, § 1404(a) arguments have become highly-formal and fairly divorced from the “interest of justice” command found in the statute. The majority opinion here nitpicks its way through Judge Albright’s case-management style and opinion in a way that goes beyond even typical de novo review of claim construction on an issue that is traditionally fully within the district court’s discretion. In particular, the majority appears to take real issue with Judge Albright’s express and actual focus on moving his docket forward quickly and efficiently.
As you might expect, the dissent is more interesting. Judge Moore:
Our mandamus jurisdiction is not an invitation to exercise de novo dominion, as the majority does here, over the district court’s individual fact findings and the balancing determination that Congress has committed “to the sound discretion of the trial court.” Nor is it an invitation for us to criticize the way our district court colleagues generally manage their dockets, or as the majority puts it, “barrel” ahead on the merits in any given case. . . .
Under the proper standard of review, I believe the only patently erroneous result here is the one reached by the majority. I dissent from that result. Though the standard of review is not de novo, because the majority has approached the case as though it is, let me add—I agree with the district court and I would have denied transfer de novo.
Slip Op. (Dissent by Judge Moore). The majority responds in kind:
To the contrary, and as we have explained throughout the order, we properly reviewed the district court’s order only for reliance on clearly erroneous fact findings, erroneous conclusions of law, or misapplications of law to fact. District courts have no discretion to make these kinds of
errors. And when such errors accumulate to produce a patently erroneous result, as they have here, we are obliged to act
Id. (Majority by Chief Judge Prost). The majority spends pages walking through the various “misapplications of law to fact” by the District Court. While none of the errors were dispositive, their collective weight was sufficient for the majority to find that the only answer is to order transfer.
Section 1404(a) is simply written, asking courts to consider “convenience of parties and witnesses, in the interest of justice.” However, the 5th Circuit has turned that open approach into an eight factor analysis:
- Private Factors
- Private: Relative ease to access to sources of proof;
- Private: Availability (and need for) compulsory process to secure witness attendance;
- Private: Cost of attendance for willing witnesses; and
- Private: Other practical considerations associated with and “easy, expeditious and inexpensive” trial.
- Public Factors
- Public: Administrative difficulties associated with court congestion;
- Public: Local interest in having a case decided ‘at home’;
- Public: Familiarity of the forum with the law that will govern the case; and
- Public: Avoidance of potential conflict-of-law problems.
In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) (en banc) Here, we’re using 5th circuit law since this is a procedural issue, not a patent-law issue. In this opinion, the Federal Circuit appears to add additional tricks-and-traps to the analysis.
Again the dissent:
[The district court] ultimately found … that Uniloc chose a venue in the district in which Apple maintains a large campus employing thousands of people, where one of the accused products is manufactured, where third-party information and potential witnesses are located, and which is convenient for potential witnesses and sources of proof and which would not impose a significant hardship on Apple.
Id. This is the baseline for me. If none of the convenience factors are determinative then there is no clear abuse of discretion or patent travesty of justice.
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Section 1404(a) as a Pretext: The obvious background to this case is that Apple believes it will have a better outcome of the case, and with more significant delays, if it is assigned to a judge in the Northern District of California rather than Judge Albright. The convenience argument is simply a pretext on that front.
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Finally, we should all note that the convenient-venue analysis is entirely different than the proper-venue analysis that does not provide discretion in any way. Apple agrees that venue is proper in W.D. Tex. If you remember, Apple previously closed its Apple Store in Plano to avoid proper venue in E.D. Tex. but has thousands of employees in W.D. Tex. and is in the midst of building a $1 billion campus in Austin (where this trial likely would have been held).