In re TracFone Wireless, Inc. (Fed. Cir. 2021)
On mandamus, the Federal Circuit has again found that Judge Albright clearly abused his discretion in failing to rule on TracFone’s motion to transfer its case out of the Western District of Texas and to a more convenient venue.
Although Judge Albright has promised rapid progression of patent infringement cases to trial, he has been sitting on transfer motions and leaving them undecided. Here, the appellate panel repeated its prior statement that Judge Albright’s approach “amount[s] to egregious delay and blatant disregard for precedent.”
We order 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.
The court went on to particularly order that Judge Albright issue an order within 30 days. The court also ordered “that all proceedings in the case are stayed until further notice.” Presumably, this means that the this panel of Federal Circuit judges (REYNA, CHEN, and HUGHES) will maintain supervisory authority over the case throughout this process.
Precis Group filed the original lawsuit back in April 2020 and TracFone submitted its motion to dismiss/transfer in June 2020. Since that time, the case has proceeded without any ruling on the motions. In December, the court held a Markman hearing and issued a claim construction order. (Note here, it is only a 2-page order). In any event, the case is well underway and Judge Albright understands many of the issues at stake in the litigation. Of course, this experience through delay appears to be strategic on Judge Albright’s part because his familiarity with the case is a reason to deny a transfer of Venue. The Federal Circuit panel looked to avoid rewarding Judge Albright for his “bad” behavior. Thus, the court explained that “any familiarity that [Judge Albright] has gained with the underlying litigation due to the progress of the case since the filing of the complaint is irrelevant when considering the transfer motion and should not color its decision.”
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TracFone’s motion is both for lack of proper venue under 28 U.S.C. §1400(b) and inconvenient venue under 28 U.S.C. §1404(a). Regarding proper venue, TracFone does not reside in TX — it is a Delaware corporation headquartered in Miami, Florida. In addition, TracFone argues that it “does not have any place of business” in the W.D. Texas. TracFone does sell its products throughout the district using, but it appears to no longer have a branded store. Rather, its products are sold within other outlets such as 7-11, Dollar General and Joyeria y Discoteca Diana. These “independently owned and operated stores” may have franchise rights that allow them to use TracFone’s trademarks and create contractual rights on behalf of the company, but the defendant argues those agreements do not result in TracFone having a “place of business” within the district.