January 25, 2021

Volume XI, Number 25

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January 22, 2021

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Waco to be the New Trial Hot Spot

With Judge Gilstrap of the Eastern District of Texas finally cancelling his winter trials in the face of surging cases, attention turns to the Western District of Texas, which Judge Alan Albright is going in a different direction.

Waco has become the nation’s hottest patent infringement venue, in part due to Judge Albright’s willingness to bring patent cases quickly to trial. Defendants sued in the Waco Division frequently adopt a strategy of moving for an interdivisional transfer to Austin. Judge Albright has been amenable to such motions, but often he retains the case as the trial judge even as he transfers it to Austin. Yesterday he entered a noteworthy order in one such case.

The Western District of Texas has continued trials through the end of 2020. However, judges in a particularly division may opt out of that order. The judges in Austin have not opted out. Thus, according to Judge Albright, the Austin Division is “currently closed” and “remains closed indefinitely.” Accordingly, with trial set for January in Austin, Judge Albright transferred the case back to Waco, where he intends to proceed with the trial.

Judge Albright found that under Federal Rules of Civil Procedure 1 and 77(b), district courts have the authority to try a case in any division within a district, even without the parties’ consent. He also found that district courts possess the inherent authority to transfer a case to another division. Exercise of that power, however, must be a reasonable response to a specific problem. Judge Albright wrote:

Here, the specific problem before the Court is the indefinite closure of the Austin courthouse. As described above, the Austin courthouse is currently closed and has been closed on a month-by-month basis since March 2020. Furthermore, because there is no foreseeable end to the COVID-19 pandemic, there likewise is no foreseeable end to the closure of the Austin courthouse. But, out of an abundance of caution, the Court asked Judges Yeakel and Pitman whether there is a month-certain when the Austin courthouse will reopen, but their answer was no. As such, that answer confirmed the Court’s conclusion that the Austin courthouse appears to be closed indefinitely.

 

Given this reality, the Court only has two options with respect to the instant case: (1) wait until the Austin courthouse reopens or (2) move the trial to an open courthouse in the district. The Court does not believe that the first option is practical or reasonable for several reasons.

 

First, the Court has already delayed the trial date in the instant case by two months and there is no foreseeable date or date-certain when the Austin courthouse will reopen. Second, the pandemic has created a backlog of trials such that delaying one trial further delays other trials. Therefore, the Court believes that it must manage its docket proactively in order to minimize the effect of that backlog. Third, because the trial dates for the -00255 and -00256 cases are two and four months, respectively, after the trial date for the -00254 case, delaying the trial date of the – 00254 case not only delays the trial date of that case, but it has a multiplicative effect by delaying the trial dates of the other two cases by the same amount of time. Fourth, because patents have a limited term, the Court does not believe it should unnecessarily delay a trial date, especially when an alternate venue is available. For at least these reasons, the Court does not believe that waiting until the Austin courthouse reopens is a practical or reasonable. As such, the only other option available to the Court is to move the trial to Waco.

In a footnote, Judge Albright noted: “Unfortunately, unlike circuit courts that may be able to hold telephonic hearings or district courts that may be able to hold a virtual bench trial, the Court does not believe that it is fair and/or appropriate to hold a virtual jury trial.”

Notably, this order was entered in a case filed in April 2019, with patents-in-suit that will not expire until 2027 and 2029.

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© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 330
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About this Author

Michael S. Nadel Partner  Washington, DC Litigation & Dispute Resolution  Intellectual Property  Trust & Estate Controversy  Commercial Litigation  Patent Litigation  Trade Secrets Litigation  Trademark and False Advertising Litigation  Technology  Alcohol Industry  Food, Beverage & Agribusiness Intellectual Property  Food, Beverage & Agribusiness Litigation
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Michael S. Nadel is the co-head of the Firm’s litigation practice in Washington, D.C. He is an accomplished first-chair trial attorney. Michael has handled numerous jury trials, bench trials, and injunction proceedings in federal and state courts around the country. He has won high-profile cases involving breach of contract, trade secret theft, patent and trademark infringement, and the False Claims Act. Michael won the first jury verdict obtained by any litigant under the Defend Trade Secrets Act, the recently enacted federal trade secret statute.

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Jennifer B. Routh Attorney Litigation Lawyer McDermott Will Emery
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Jennifer Routh focuses her practice on complex civil litigation. She has achieved notable successes for her clients including significant summary dispositions and through trial to final judgment. She recently tried three cases in the span of twelve months, all of which resulted in victories for her clients. One of those cases resulted in the first jury verdict under the federal Defend Trade Secrets Act of 2016. In addition to her trial victories, Jennifer has achieved complete dismissal of cases based on motions to dismiss and motions for summary judgment.

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