Venue Transfers Without Delay

by Dennis Crouch

In re Apple, — F.4th — (Fed. Cir. Nov 8, 2022)

The Federal Circuit has again ordered Judge Albright to halt pending litigation until he decides Apple’s motion to transfer venue on grounds of inconvenience under 28 U.S.C. 1404(a).  In particular, the court (1) vacated the scheduling order; and (2) directed Judge Albright to postpone fact discovery and “any other substantive proceedings.”

Aire Technology sued Apple for infringement back in October 2021.  In April 2022, Apple filed its motion to transfer.  At that point, the parties conducted some amount of ‘venue discovery’ that was completed around the end of June 2022.  However, instead of ruling on the motion, Judge Albright  told the parties he would postponed ruling for another 7-8 months while fact discovery in the case was ongoing.  Apple then petitioned for writ of mandamus, arguing that delay created a critical injury to the tech giant’s convenience that deserved immediate remedy. And, the Federal Circuit has complied–ordering the district court to go ahead and decide the transfer motion.

In this situation, I have tremendous sympathy for Judge Albright’s ruling.  Albright had previously noted problems with Apple’s venue declarant, Mark Rollins who “frequently and repeatedly submitted unreliable and misleading declarations to this Court.”  Scramoge Tech. Ltd. v. Apple Inc., 2022 WL 1667561 (W.D. Tex. May 25, 2022) (finding Rollins to be not credible).  Even without these particular problems with a 30(b)(6) declarant, my experience is that the witnesses and evidence arguments made in the 1404(a) context at the pleading-stage are notoriously unreliable because they do not reflect the actual evidence/witness issues that become clear around the end of discovery.  Further, parties treat the Section 1404(a) factors as a scorecard or checklist in ways that are often divorced from the interests of justice.

This mandamus is particularly about delaying a transfer decision while the case is developed.  I see little harm in that delay.  Discovery in federal courts is a nationwide endeavor. Evidence is exchanged electronically; parties go to the location of witnesses to conduct discovery; and discovery disputes needing court intervention are ordinarily resolved over the phone (or Zoom).  Thus, there would not be much difference for the parties during this period in terms of litigating in N.D. Cal. vs W.D. Tex.–with the one exception that Judge Albright  remains the judge if the case stays in W.D. Tex.  It is clear that this final Albright-factor underlies Apple’s true purpose in filing these motions and mandamus actions: to escape from Judge Albright.  Of course, that true reason is not justified under the law and so is never mentioned.

One key benefit of an early transfer would be to permit the new district court to get up-to-speed on the issues in the case and begin exerting their own style of case management.  That said, N.D.Cal. judges ordinarily defer the whole discovery process to a magistrate judge and thus rarely become involved.  The Federal Circuit cited some precedent about how an early transfer avoids double-work by two district courts. However, it is not clear how that precedent is applicable in this situation.

In its decision, the Federal Circuit did not delve into the particular issues, but rather focused on prior precedent that “entitles parties to have their venue motions prioritized.”  Id.

17 thoughts on “Venue Transfers Without Delay

  1. 5

    1404a convenience is an archaic concept that should be eliminated. No one actually cares about geographic location or actual convenience – every internal legal team discussion about a 1404a is about perceptions of judge/jury/home court advantage and then figuring out how to mold the facts to fit the 1404a factors, and its been that way for years. It was this way even before you could do an entire case without actually being in the forum – now all papers are filed electronically, hearings conducted remotely, depositions conducted remotely. With just a couple flights a year, a lawyer with a CA admission on the east coast can conduct a patent trial in CAND just as easily as a lawyer in San Francisco.
    One possible exception – very small companies with only a local presence – they care about convenience. But TC Heartland resolved that question for them. As defendants they have to be sued where they are and as plaintiffs, they’re screwed.

    1. 5.1

      Yes, yes, and yes.

  2. 4

    It is clear that this final Albright-factor underlies Apple’s true purpose in filing these motions and mandamus actions: to escape from Judge Albright. Of course, that true reason is not justified under the law and so is never mentioned.

    What one thinks of these rulings from Judge Albright, the ensuing mandamus petitions, and the mandamus orders from the Federal Circuit probably depends on whether you trust Judge Albright. He’s either making reasonable calls and getting unfairly micromanaged, or he’s up to tactical shenanigans to serve his forum-shopping customers and getting justly reined in.

    1. 4.1

      I take it back (not that I can delete the comment, but if I could I’d revise). Maybe the real question is not about this or that judge, but what one thinks more generally of forum shopping or judge shopping–both as a matter of policy and whether the current law tolerates it.

      If you think forum/judge shopping generally fine or that the law generally tolerates it as long as it’s not clearly unreasonable for travel (e.g., local dispute between 2 Florida companies brought in the District of Alaska), then the orders coming out of Waco probably seem fine and the mandamus orders seem unreasonable. 1404 is about convenience; it’s not a sacred right to leave a forum you’d prefer not to be in, and transfers under that statute are at the judge’s discretion. It’s not the whole story, but not every judge is equally efficient, equally good with patent law, and equally busy, so why not allow plaintiffs some choice among judges?

      If you take the opposite view, then you’d probably reach the opposite conclusions about the orders from Waco vs. Washington. Forum shopping is unseemly, especially in single-judge districts where plaintiffs can hand-pick a single judge out of the hundreds in the country. And if plaintiffs are all picking one judge and sending him a double-digit percentage of all the patent cases in the country, it’s not hard to imagine why not everyone thinks that’s a good look for the judiciary. 1404 and mandamus let the FedCir do a bit of oversight on the outlier orders.

      1. 4.1.1

        IDK. The problem with venue transfers as a remedy is that they just allow the defendant to Judge/jury shop (on top of the already-narrower patent venue rules)

        1. 4.1.1.1

          Nice point OC (the shopping is NOT limited to one side of the “V”).

          Other points: nanny-state versus what the Supreme Court had previously asserted (desire to push down judicial control to the lowest local level); Circuit versus Federal “rules;” has the particular judge done anything substantively wrong – versus the fact that another Federal level judicial body (Court of Claims) emulates the tactics of that particular judge…

        2. 4.1.1.2

          True, but it’s not symmetric as the defendant has lot less choice. The defendant has to show that the transferee forum is clearly more convenient under the factors precedent says is relevant. It’s not as if defendants can choose any judge or any court. And not as if there’s a single defendant-friendly judge who’s getting a plurality of the patent litigation in the country via 1404 transfers and mandamus orders.

          1. 4.1.1.2.1

            And not as if there’s a single defendant-friendly judge who’s getting a plurality of the patent litigation in the country via 1404 transfers and mandamus orders.
            One does not need a “single” defendant-friendly judge when an entire circuit itself (e.g., NDCal) is friendly.

            1. 4.1.1.2.1.1

              Had the same thought Wandering.

              Why take a chance on getting but a single patent-hating, infringer-loving, justice-denying judge . . . when you’ve got an entire cabal of them at the ready.

    2. 4.2

      Yes, Apples true purpose in avoiding Judge Albright, and Judge Albright’s true motives in acquiring and keeping as much as possible of a third of patent suits [despite the venue statute and 5th and Federal Circuit decisions], and even the desirability of changing both applicable venue statutes, are all 3 valid and well known academic or background questions. But they are not the legal issue and legal decision here, which is simply if Judge Albright can simply refuse to even decide preliminary venue transfer motions and conduct the case and order the parties to extensively proceed as if no preliminary venue transfer motion had been filed. [See 1 below.]

      1. 4.2.1

        What exactly are Judge Albright’s “true motives”? Are you publically accusing the Judge of corruption?

        1. 4.2.1.1

          I keep on asking (with no replies): what are the substantive patent law egregious “errors” being committed (and this necessarily means other than “Defendant does not like”).

        2. 4.2.1.2

          I normally do not dignify such obvious miss-representations with a response. I have no idea of the answer to the logical question of why he wants such a high percentage of all patent suits on his docket in Waco Texas. Do you?

          1. 4.2.1.2.1

            Says the IPR Cheerleader…

            No one believes you, Paul.

  3. 3

    “that true reason is not justified under the law and so is never mentioned.”

    . . . surprising absolutely no one.

    Justice hijacked. Yet again.

  4. 2

    Discovery in federal courts is a nationwide endeavor. Evidence is exchanged electronically; parties go to the location of witnesses to conduct discovery; and discovery disputes needing court intervention are ordinarily resolved over the phone (or Zoom). Thus, there would not be much difference for the parties during this period in terms of litigating in N.D. Cal. vs W.D. Tex.–with the one exception that Judge Albright remains the judge if the case stays in W.D. Tex. It is clear that this final Albright-factor underlies Apple’s true purpose in filing these motions and mandamus actions: to escape from Judge Albright. Of course, that true reason is not justified under the law and so is never mentioned.
    This. All of this.

    28 USC 1404(a) is being abused by defendants to get away from judges they don’t like and the Federal Circuit has given them their complete blessing by butchering/transforming an abuse of discretion standard into a de novo standard.

  5. 1

    That venue disputes should be decided before general discovery and other such major pre-trial activities is normal and conventional. It was also clearly previously indicated by the Fed. Cir. in its prior mandamus actions re this court, and apparently being flaunted. If venue transfer is ordered much later, the newly assigned judge will have to duplicate patent claim and other case background evaluations for any discovery disputes. If Apple’s venue facts declarant was already previously proven not credible there are obviously other ways that problem can be addressed that do not require avoiding venue transfer motion decisions for 7-8 months, including deciding the motion against Apple.

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