In re TracFone (Fed. Cir. 2021)
Here is a recap of where we are with this W.D. Tex. venue case before Judge Albright:
- Precis Group sued TracFone in W.D.Tex. (Waco) for patent infringement, alleging that venue is proper because TracFone has a San Antonio Total Wireless store.
- TracFone moved to transfer venue on improper venue (saying that the store was not TracFone’s store, and besides, the store was closed already) and also inconvenient venue.
- Judge Albright did not decide the venue motion for several months, but kept the case rolling forward toward trial. After eight months, TracFone petitioned the Federal Circuit for a writ of mandamus.
- On mandamus, the Federal Circuit ordered Judge Albright to immediately consider the venue motion. The next day following mandamus, Judge Albright denied the motion to transfer venue — holding that venue was proper and convenient.
NOW: TracFone has filed a new petition for writ of mandamus seeking an order compelling Judge Albright to transfer the case to the Southern District of Florida, TracFone’s home court. The Federal Circuit immediately ordered Precis to respond within 7 days. Although not clear from the docket, I suspect that this petition will be passed to the same trio judges who handled the last one – Judges Reyna, Chen, and Hughes.
In my post on the case, I noted troubles with Judge Albright’s venue decision, and the mandamus petition picks up on those — arguing that “the district court here abused its discretion by accepting as true the venue allegations in the complaint where those allegations were directly contradicted by TracFone’s declarations, declarations not rebutted by any declarations of plaintiff.” [TracFone Second Mandamus Petition].
In his opinion, the district court accepted the complaint’s allegations as true and concluded that the plaintiff “has plead sufficient venue facts to establish venue in WDTX.” The district court did not appear consider TracFone’s evidence that it submitted via declaration — that it did not own the store and that the store was closed “well before” the action was filed. Typically, in this situation, courts consider affidavit evidence presented by defendants, and that was not done here.
In my mind, the only question here is whether the Federal Circuit will vacate the decision or instead simply order the transfer.