(Non)Precedent on Venue Transfer?

by Dennis Crouch

In TracFone, the Federal Circuit issued two strongly worded strongly worded mandamus opinion relating to venue.

  • In re TracFone Wireless, Inc., 2021-118, 2021 WL 865353 (Fed. Cir. Mar. 8, 2021) (remanding for a ruling on venue); and
  • In re TracFone Wireless, Inc., 2021-136, 2021 WL 1546036 (Fed. Cir. Apr. 20, 2021) (ordering transfer under 1404(a)).

The March 2021 decision orders W.D.Tex. Judge Albright to immediately decide TracFone’s venue motions (and write a reviewable opinion).  Judge Albright immediately complied by denying TracFone’s motion to dismiss or transfer the case. The Federal Circuit’s April 2021 decision concluded that Judge Albright had “abused [his] discretion.”  The appellate panel then ordered the case to be transferred to Florida.

Although the April 2021 decision provides finality, it is actually the March 2021 decision that is perhaps more interesting. The appellate panel ordered immediate action on the venue question and generally suggested that a district court should drop-everything to decide venue motions.  The judge’s familiarity with the facts/law of a particular case is typically seen as relevant the outcome of an inconvenient venue motion under 1404(a).  In its decision though, the court held that the district court should not consider any familiarity it has gained after the filing of the complaint:

[W]e remind the lower court that any familiarity that it 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.

Slip Op.

One problem with this decision is that it is non-precedential.  Thus, the clear language has limited value going forward. Now, a group of law professors have petitioned to reissue the decision as precedential.

This Court should reissue its TracFone order as precedential to definitively establish the law regarding improper delays in ruling on transfer motions and requests for stay pending the resolution of such motions. Absent clear precedential guidance, courts may continue to disregard this court’s nonprecedential instructions and make procedural errors that force parties to settle or to litigate in an inappropriate, inconvenient, and costly forum.

Motion to Reissue as Precedential. Federal Circuit Local Rule 32.1 provides the following procedure for this type of motion:

Within sixty (60) days after the court issues a nonprecedential opinion or order, any person may request through motion filed in the case that the opinion or order be reissued as precedential. The request will be considered by the panel that rendered the disposition. The motion must identify any case that person knows to be pending that would be determined or affected by reissuance as precedential. Parties to pending cases having a stake in the outcome of a decision on the motion must be given an opportunity to respond. If the request is granted, the opinion or order may be revised as appropriate.

Rules.  The motion was filed by Stanford’s IP Clinic (Philip Malone) on behalf of a group of law professors led by Mark Lemley.

I’ll note here as an aside that some of the language here could also be applied in the context of stays of litigation pending outcome of an AIA trial. Judge Albright has generally taken an approach of refusing stays in most cases.

= = = =

In re Western Digital (Fed. Cir. 2021). In a separate decision today, the Federal Circuit denied Western Digital’s petition for writ of mandamus to escape from W.D. Tex.  The appellate panel did find that Judge Albright had applied the wrong legal standard by stating Western-Digital faced a “heavy” and “significant” burden before a case would be moved for convenience.

To be sure, the district court incorrectly overstated the burden on WDT as “heavy” and “significant.” but see Volkswagen, 545 F.3d at 314–15 (explaining that Congress intended to grant transfer under section 1404(a) upon a lesser showing of inconvenience than the “heavy burden” traditionally required under the forum non conveniens doctrine).

Slip Op. Still, the court found no abuse of discretion in denying transfer:

Although we may have evaluated some of the factors differently, we are not prepared to say that the district court’s ultimate conclusion that the transferee venue was not clearly more convenient amounted to a clear abuse of discretion.


= = = = =

One issue with this exercise has to do with the Federal Circuit’s approach to non-patent issues that come before the court. Motions to transfer under 1404(a) (inconvenient forum) are not patent-specific and so the Federal Circuit applies the law of the regional circuit court of appeals rather than its own precedent. For these cases out of W.D.Tex., the court applies 5th Circuit law regarding transfer of venue rather than its own precedent.  Likewise, lower courts follow 5th circuit law rather than Federal Circuit law. Thus, we have a question of what role a precedential opinion on this point would actually serve.

9 thoughts on “(Non)Precedent on Venue Transfer?

  1. 5

    Lemley. At this point, just another paid advocate front group like EFF for the serial infringer lobby. IMHO, he’s the king of misdirection by omission in these position papers.

  2. 3

    The reason these mandamus opinions on transfer motions are rarely precedential is for precisely the reason your last paragraph explained – they are all interpreting regional circuit law, so they can’t actually be binding precedent on any court. They are persuasive precedent, though. There are a few which are precedential from the time just after the Fifth Circuit Volkswagen decision, and a few out of Delaware from several years back. But more recently they’ve pretty consistently been nonprecedential.

  3. 2

    These academics are carrying the water for big tech. They don’t care about the public interest. Many of these same academics have advocated for “faster and cheaper” adjudications allegedly provided by the PTAB. Yet when Judge Albright provides faster and cheaper adjudication PLUS due process and the 7th amendment, they protest. Instead they want cases transferred to a slower, more costly venue such as California (or the PTAB).

    This is a sad state of affairs to see academics undermining core principles of jurisprudence like an judicial independence, due process, and speedy trials.

    They already won in TC Heartland. If their big tech patrons don’t want to defend their unlawful actions in Texas then they should simply relocate.

      1. 2.1.1

        Apple escaped EDTX. If they don’t like WDTX they shouldn’t remove their businesses or quit infringing.


          Oh Josh, I certainly do ‘get’ what you want (and I want it too) – but the note of presuming is due to the fact that merely taking the benefit of doing business in a State (under current controlling law) does not carry a matching liability to that benefit (necessarily).

          I would be all for a controlling edict of law that if you as a business obtain benefit by doing business in a State, you open yourself up to a liability – of doing business in that State.

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