from the how-is-this-allowed?!? dept
You may recall last fall we had an absolutely astounding story about Judge Alan Albright, a former patent litigator, who was appointed as the only judge in the federal district court in Waco. He very, very quickly made it clear that he wanted all patent cases to come to him, turning the Western District of Texas into the new favored home of patent trolls, taking the mantle from East Texas, which has famously been the trolls’ preferred home for over a decade. Albright did things most people inherently recognize no judge should ever do. This includes things like literally going on a publicity tour to convince patent holders and trolls to file patent cases in his court. To this day, he seems to relish the fact that, despite being on the bench for just a little over two years, more than 20% of all patent cases end up on his personal docket.
With his desire to be the judge of choice for patent holders, he also built up a reputation for refusing to transfer cases to more appropriate jurisdictions — even though the Supreme Court made clear in 2017 that patent cases should go to the appropriate docket, rather than whatever one the patent holder wants. A paper published last fall all about Albright’s troubling role in patent cases called this out specifically.
Since taking the bench, Judge Albright has likewise staunchly refused to transfer cases out of the Western District. As of July 7, 2020, he has decided thirteen motions seeking transfer away from the Western District under ? 1404(a); he has denied eleven. In fact, in a recent order, Judge Albright effectively told Apple?which has been sued at least ten times in cases assigned to Judge Albright and regularly seeks to have those cases moved to the Northern District of California?to stop filing transfer motions.
At the time we wrote that story last fall, the Court of Appeals for the Federal Circuit (CAFC), which handles all patent appeals, had just told Albright to transfer at least one of those cases. In February it got angry at Albright again in a case involving SK Hynix. Incredibly, even though SK Hynix sought to transfer the case all the way back in early May of last year, Judge Albright not only refused to rule on the motion to transfer, but ordered SK Hynix to go through the expensive discovery process — which is what tends to destroy defendants in patent suits and push them to settle. After months of the judge refusing to even respond to the motion to transfer and having to go through expensive discovery, SK Hynix asked the CAFC to weigh in, and they slammed Albright, reminding him that they’d already scolded him about this last year:
We agree with SK hynix that the district court?s handling of the transfer motion up until this point in the case has amounted to egregious delay and blatant disregard for precedent. As we recently reiterated, ?[a]lthough district courts have discretion as to how to handle their dockets, once a party files a transfer motion, disposing of that motion should unquestionably take top priority.? In re Apple Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020) (citations omitted); see also In re Horseshoe Entm?t, 337 F.3d 429, 433 (5th Cir. 2003) (?[I]n our view disposition of that [transfer] motion should have taken a top priority in the handling of this case by the . . . District Court.?). No such priority was given to the motion here, as it simply lingered unnecessarily on the docket while the district court required the parties to proceed ahead with the merits.
Unfortunately, rather than force Albright to transfer the case, they noted that he’d finally agreed to have a hearing on the motion to transfer, so they’d basically let it slide. The very next day, Albright ruled on the motion… and denied the transfer, saying the trial would move forward. A few days ago, SK Hynix agreed to a settlement to end the case.
Last month, CAFC had to step in again on an Albright case where he seemed to have done exactly the same thing. This case involved TracFone. In June, it had filed a motion asking Albright to either (1) dismiss the case for being in an improper venue, or (2) transfer it to a more appropriate venue. Albright did neither. Instead he pushed TracFone into discovery while simply not ruling on the motion. Notice a pattern? So did the CAFC:
We addressed strikingly similar circumstances from the same district court last month in SK hynix. There, as here, the petitioners sought mandamus relief from this court after waiting nearly eight months for a ruling on a motion to transfer that was fully briefed. We agreed with the petitioner that ?the district court?s handling of the transfer motion up until this point in the case has amounted to egregious delay and blatant disregard for precedent.? 835 F. App?x at 600?01. We did not compel further action because the district court scheduled a hearing while the petition was pending before this court, but we directed the district court to stay proceedings, including the upcoming Markman hearing, until the district court ruled on the motion. We explained that mandamus was appropriate because ?precedent compels entitlement to such relief and the district court?s continued refusal to give priority to deciding the transfer issues demonstrates that SK hynix has no alternative means by which to obtain it.?
It then points out what a travesty this is:
In Google, we explained that lengthy delays in resolving transfer motions can frustrate the intent of ? 1404(a) by forcing defendants ?to expend resources litigating substantive matters in an inconvenient venue while a motion to transfer lingers unnecessarily on the docket.? 2015 WL 5294800 at *1. We concluded that a trial court?s failure to act on a fully briefed transfer motion that had been pending for approximately eight months while pressing forward with discovery and claim construction issues amounted to an arbitrary refusal to consider the merits of the transfer motion. Id. at *1?2. We therefore directed the district court to promptly rule and to stay all proceedings pending completion of the motion. Id. at *2.
Our decisions in Google and SK hynix rest on a principle well-established in Fifth Circuit law: That district courts must give promptly filed transfer motions ?top priority? before resolving the substantive issues in the case. In re Horseshoe Entm?t, 337 F.3d 429, 433 (5th Cir. 2003) (?[I]n our view disposition of that [transfer] motion should have taken a top priority in the handling of this case by the . . . District Court.?); see also In re Apple, Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020 (explaining that ?once a party files a transfer motion, disposing of that motion should un-questionably take top priority.?); In re Nintendo Co., Ltd., 544 F. App?x 934, 941 (Fed. Cir. 2013) (?[A] trial court must first address whether it is a proper and convenient venue before addressing any substantive portion of the case.?).
We agree with TracFone that the circumstances here are comparable to those in Google. As in Google, the facts here establish that the district court has clearly abused its discretion. And, unlike in SK hynix, the court to date has taken no action to suggest it is proceeding towards quick resolution of the motion.
Ouch. Having been benchslapped yet again, Judge Albright announced that he was finally going to start doing what he should have been doing all along: issuing a standing order admitting that certain other issues, such as the important Markman hearing where the judge basically determines what the patent claims cover, would be held off until he was able to review venue transfer requests. Markman hearings don’t need to be held right away, but Judge Albright seemed to push to get them going quickly even while ignoring transfer requests. But now he says he’ll make sure to rule on transfer prior to any Markman hearing:
When there is a pending inter-district transfer, the Court will either promptly enter an order resolving the pending motion(s) prior to the Markman hearing or it will postpone the Markman hearing until it has had the opportunity to do so. The Court will not conduct a Markman hearing until it has resolved the pending motion to transfer.
It only took a bunch of CAFC benchslaps to get there. Of course, getting him to rule quickly doesn’t mean that he’ll actually transfer the cases. Three days after CAFC yelled at Albright about the TracFone situation, he denied the transfer request (as well as the dismissal request) even while admitting that TracFone’s preferred venue in South Florida would be more convenient for the witnesses and parties.
Also, it looked like CAFC was on the verge of benchslapping him again, but he (WOW!) actually transferred one case to Houston. Of course, that was after he’d already denied the transfer last summer, and CAFC had already told him to reconsider, which he hadn’t actually gotten around to many months later. The defendant in that case, Nitro Fluids, had gone back to CAFC to ask it to make Albright rule, and thus he finally did so — leading the CAFC to drop the issue as moot.
And, most recently, Albright has denied a request by Microsoft to transfer a patent case out of his court. In this most recent ruling Albright declares that: “A party seeking transfer to an allegedly more convenient forum carries a significant burden.” I mean, yeah, in your court.
I remain flummoxed as to how this is allowed. I cannot come up with any reasonable explanation for allowing a judge to act this way. It is beyond sketchy. He’s advertising his court as friendly to patent filers, and when defendants seek to move cases to more appropriate venues, he stalls, forces them into expensive processes — despite courts telling him to stop — and when he finally makes a slight nod towards obeying the rules, he still regularly rejects the transfer requests. Even if he and his supporters argue that there’s some reason that all of this makes sense, at the very least, it reeks of gaming the system, bias against patent defendants, and not wanting to play by the rules. It’s shameful behavior by a judge.