TracFone: Mandamus All Over Again

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.

Timing the Venue Inquiry in W.D. Texas

Egregious Delay and Blatant Disregard for Precedent





11 thoughts on “TracFone: Mandamus All Over Again

  1. 2

    If this was remanded, would the rules give Precis opportunity to enter its own declaration to counter Tracfone’s currently un-countered declaration?

    1. 2.1

      Basic due process should allow a Precis affidavit response, but the disputed patent venue statute question is binary – was defendant’s store [or any other defendant store in WDTX] open when the lawsuit was filed in WDTX, or not?

      1. 2.1.1

        Precis already had the opportunity to submit rebuttal declarations when it filed its opposition to Tracfone’s motion. My suspicion is that Precis didn’t bother to do that because, in most cases, facts relating to venue are rarely the subject of significant dispute (e.g., people can’t really disagree on the location of offices, documents, witnesses, etc.).

        And the fact that Tracfone submitted uncontested affidavits does not guarantee transfer, either; the district judge could find on remand that Tracfone simply didn’t meet its burden of showing that S.D. Florida was “clearly more convenient” than W.D. Tex., even considering its uncontested affidavits.


          “the district judge could find on remand that Tracfone simply didn’t meet its burden of showing that S.D. Florida was “clearly more convenient” than W.D. Tex., even considering its uncontested affidavits”

          That doesn’t seem to fully address what’s happening here. Tracfone isn’t only saying that the S.D. of Florida is more convenient and they should get a transfer via 1404, they’re also saying that the W.D. of Texas is flat-out improper and they should get a transfer via 1406. So a failure to show that S.D. of Florida is more convenient isn’t a sufficient criteria for keeping it in W.D. Texas.


            Interesting point Ben – I do not think that the rapid-fire response to the CAFC’s “do this” touched upon the 1406 angle at all (and neither did Prof. Crouch’s expressed concerns).


            Yes, two separate proper venue legal questions here, re two different statutes with different tests, as discussed in the prior blog on this subject.

  2. 1

    Question: was the Federal Circuit immediate order to Precis to respond within 7 days about both the disputed statutory venue violation and inconvenient forum D.C. decisions, or just one of those issues?
    As to whether or not this new mandamus petition will be taken up by the same panel of Fed. Cir. judges who handled the last one, didn’t that panel retain supervisory jurisdiction in this case?

    1. 1.1

      A first comment has been lost to the non-objective editorial controls in place on this blog, but Paul, your question on retaining supervisory jurisdiction does recall (admittedly in tangent), what I had posted, but was blocked.

      Does the authority of that supervisory jurisdiction PERMIT the reviewing court to entirely set aside ALL possible reasoning (in the present iteration, the noted flawed — but rapid fire response – reasoning), and merely declare a Desired Ends?

      Does the supervisory jurisdiction include SOME Means for directly doing that?

    2. 1.2

      Per the 2d cert petition there is more than a fact dispute here, e.g.: “Where the district court went off track, however, was by placing exclusive reliance on Braspetro—an unpublished 2007 Fifth Circuit decision—even though in a published 2009 [controlling and ignored] decision, the Fifth Circuit made clear that “under…Rule 12(b)(3), the court is permitted to look at evidence in the record beyond simply those facts alleged in the complaint and its proper attachments.” Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009), cert. denied, 558 U.S. 1111 (2010).”

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