Google Follows Newegg In Going Over East Texas Court's Head To Ask Court Be Ordered To Do Its Damn Job
from the issue-the-ruling-already dept
So we had just written about Newegg — after waiting 20 months for a ruling in a patent case — going to the Court of Appeals for the Federal Circuit (CAFC) to ask for an order telling the district court in East Texas to actually do its job. The move worked, getting Judge Rodney Gilstrap to finally issue the order (overturning a jury award on a bogus patent), but still taking the time to scold Newegg for daring to go above his head. We quoted Newegg’s top lawyer Lee Cheng pointing out that if, as Gilstrap stated, part of the issue was his overwhelming schedule, then Gilstrap and other East Texas judges should be much more willing to grant transfer requests to courts outside of East Texas. As has been known for the better part of a decade, patent trolls love to file in East Texas because the courts there are super friendly to trolls. There is no legitimate reason for them to be in Texas, though some of the trolls set up fake empty offices in Texas just to pretend.
Either way, it looks like Google took Newegg’s idea and decided to run with it as well. It, too, has now gone to CAFC to seek a writ of mandamus telling the East Texas court to rule on its request to transfer a patent troll lawsuit to Northern California:
This petition arises out of a patent infringement suit filed against Google by Brite Smart Corp. in July 2014, which was assigned to a magistrate judge. On October 24, 2014, Google moved to transfer the case to the United States District Court for the Northern District of California. The magistrate judge received Brite Smart?s response on November 10, 2014, and Google?s reply and Brite Smart?s surreply by December 1, 2014, but has yet to rule on the motion. Nonetheless, the magistrate judge has ordered the parties to engage in extensive discovery, including the taking of depositions and exchanging infringement and invalidity contentions, and held a Markman hearing.
At times, a lengthy delay in ruling on a request for relief can amount to a denial of the right to have that request meaningfully considered….
Here, Google filed its motion to transfer approximately eight months ago. Yet, despite the obligation to ?promptly conduct? such proceedings, … there has been no ruling, not even a hearing. Meanwhile, the magistrate judge has pressed forward with the case, proceeding through to the close of discovery and conducting both a Markman hearing and a hearing related to several discovery disputes. Brite Smart makes much of the fact that Google moved to supplement its motion to transfer. However, Google?s supplement amounted to less than two pages highlighting seven lines of deposition testimony. It does not account for the previous months of district court indecision. And Google expressly asked the district court to deny the request if it meant further delay on the transfer motion.
Given this passage of time and magistrate judge?s ordering of substantive development of the case, Google has made a compelling case that the magistrate arbitrarily refused to consider the merits of its transfer motion. We therefore direct the magistrate to rule on the motion to transfer within 30 days and to stay all proceedings pending completion of the transfer matter. We 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.
Again, it seems that there is no excuse for this, other than that the East Texas courts are buried under all these patent lawsuits, and the easiest way to deal with that problem is to promptly transfer out cases that don’t belong there.