by Dennis Crouch
The Federal Circuit has been extremely active over the past few years in hearing mandamus petitions filed under the convenient venue provisions of 28 U.S.C. 1404(a). Most often, these petitions have come from patent infringement defendants who were sued in Judge Albright’s Waco court. To be clear, these are cases where venue is proper, but where the defendant argue that a different venue will be clearly more convenient:
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). Convenient venue is not a patent-specific doctrine and so the Federal Circuit follows the law of the regional circuits when deciding these cases. For cases out of Texas, this is 5th Circuit law. The 5th Circuit very rarely decides mandamus cases, so the Federal Circuit has actually been substantially developing the law in the interim. But, the 5th Circuit recently issued a mandamus denial that should tend to help Judge Albright (and other patent law loving district court judges) keep their patent cases.
This case started as a qui tam false claims act against Planned Parenthood–alleging millions of dollars of false or fraudulent Medicaid claims. The case was originally filed in Amarillo (N.D.Tex.), and Planned Parenthood moved for a transfer of venue to Austin (W.D.Tex) as a much more convenient forum. The district court denied the motion and Planned Parenthood filed this mandamus petition.
The 5th Circuit has denied the petition on several grounds. Although all three members of the panel agreed to the denial, only one other judge joined Judge Elrod’s decision (Joined by Judge Graves; with Judge Ho concurring in judgment).
The opinion walks through several important elements of 5th Circuit venue-mandamus jurisprudence, but the opinion repeatedly returns to the broad discretion given to district courts in deciding convenient venue questions:
We reiterate that district courts have broad discretion in deciding motions to transfer; they need only grant such a motion where the evidence demonstrates that the destination venue is “clearly more convenient” than the chosen venue. We review that decision “only for clear abuses of discretion that produce patently erroneous results.” The district court carefully considered each of the private and public interest factors, ultimately concluding that they do not weigh in favor of transfer. The standard for reversing that holding is high.
Id. These statements are all found in prior precedent, but the forceful new precedent may shift Federal Circuit’s doctrine.
The Federal Circuit has been reticent to give Judge Albright credit for his familiarity with technology and patent law (as well as that of his magistrate judge). In Planned Parenthood, the Amarillo district court had noted his familiarity with the law as one factor for keeping the case. On mandamus, the appellate panel found no abuse of discretion with that approach.
One common factor analyzed by the courts is location of the evidence. Here, the appellate panel explained that factor can be important, but not where the “vast majority of the evidence [is] electronic, and therefore equally accessible in either forum.” In its prior precedent of Volkswagen, the 5th Circuit had placed greater weight on this factor, but that was because the evidence was “physical in nature.”
The court also felt it was appropriate to take into account the low cost of staying in hotels and eating in Amarillo as compared to Austin. Although Waco may be a bit more costly than Amarillo, it is so much cheaper than Silicon Valley or Delaware. “[W]e cannot say that this analysis is based on incorrect legal principles or erroneous factual findings such that it would constitute an abuse of discretion.”
A key factor in this caw that weighed against transfer is that Planned Parenthood first made a 12(b)(6) motion to dismiss the case and then, after losing that motion, filed its motion to transfer. “inexcusable delay” can strongly weigh against transfer.