By Vincent Allen*
As discussed in my prior post, the Waco Division of the Western District of Texas has seen a dramatic uptick in the number of patent infringement suits since Judge Albright took the bench. And like other venues where plaintiffs have flocked, it is only natural that defendants attempt to transfer cases out of Waco where venue is either improper or clearly more convenient in another forum.
In a suit filed against Dell Computers by Datascape in the Waco Division on February 13, 2019, Dell did just that. Dell has its headquarters in Round Rock, a suburb of Austin located in the Austin Division of the Western District of Texas. However, the same rules for transfer for convenience under section 1404(a) apply to intra-division transfer requests as for transfer between districts. Dell asked Judge Albright for an intra-district to transfer of the case from the Waco Division to the Austin Division on the grounds that Austin is clearly more convenient than Waco. Dell presented evidence that documents related to the case as well as a number of witnesses were located in Austin.
Judge Albright followed In re Radmax, Ltd., a Fifth Circuit decision that held that the trial court abused its discretion in refusing to transfer a case from the Marshall Division to the Tyler Division of the Eastern District of Texas. In that case, none of the factors in the convenience transfer analysis favored Marshall, three factors favored transfer, and five were neutral.
Judge Albright found that none of the convenience transfer factors favored retention of the case against Dell in Waco. Dell presented evidence that sales, marketing, and financial information related to the accused products was located in Austin. Yet, Datascape offered no evidence of any sources of proof located in Waco. With respect to the cost of attendance of willing witnesses, Dell identified witnesses located in Austin with knowledge of marketing and sales of the accused products. Datascape failed to identify any witnesses located in Waco.
However, Datascape did identify a Dell employee located in Dallas that it claimed would be subject to compulsory service of process in Waco but not Austin. Dell countered that this employee was in the process of moving to Austin. Judge Albright thus found this factor to be neutral.
Datascape argued that the “other practical problems” factor favored retention of the case in Waco because there are three other cases against other defendants that involve some of the same asserted patents. However, Judge Albright pointed out that this factor by itself should not swing the analysis where the other factors strongly favored transfer or were neutral. Moreover, Datascape had filed ten other suits in other jurisdictions, leading Judge Albright to summarily dismiss Datascape’s argument that transfer would increase the risk of inconsistent rulings.
Judge Albright also pointed to the fact that the parties had assented to the case remaining on his docket after transfer to Austin would avoid any inefficiencies or waste of judicial resources. In its motion to transfer, Dell offered that it would agree to Judge Albright retaining control of the case so long as the trial took place in Austin. In response, Datascape also agreed that Judge Albright could retain control over the case.
Finally, Judge Albright found that the fact that Dell may have other locations outside of Texas that deal with the accused products does not cut against Dell’s argument that those in Austin have an interest in having disputes related to Austin decided in Austin. To read the full order, click here.
In view of this decision, it is apparent that even where Judge Albright decides to transfer a case to another division, he may nonetheless keep the case on his docket. It is unclear whether Judge Albright would keep a case if the parties do not assent to him retaining the case on his docket, but he may very well do so given his affinity for patent cases.
Defendants, like Dell, might prefer that Judge Albright retain the case on his docket given his expertise in patent litigation. And plaintiffs, while perhaps not getting a trial in Waco, may still be able to take advantage of Judge Albright’s rocket docket for cases that may have no connection to the Waco Division.
*Vincent Allen is a partner focusing his practice on intellectual property litigation and management of IP portfolios. He earned his law degree from Baylor Law School in Waco. If you need help with patent litigation in Waco or elsewhere, please give Vincent Allen a call at 972-367-2001 or send an email to email@example.com.