Pursuant to the parties’ joint stipulation and request, Judge Albright has agreed to postpone a February in-person jury trial in a Waco patent case. On January 8, the parties in Digital Retail Apps, Inc. V. H-E-B, LP filed a joint stipulation asking the Court to postpone the February 19 jury trial in light of the COVID-19 pandemic.
The case was originally filed in the Waco Division in February 2019 and set for trial January 11, 2021. In August 2020, trial and jury selection was reset for February 19, 2021. Last week, the parties explained to the Court that the “worsening COVID-19 pandemic has raised significant concerns for both Parties’ attorneys, witnesses, and experts regarding the risks posed to anyone who attends in-person trial.” They requested the Court “postpone the trial date from February 19 to an available date in April in order to allow the COVID-19 situation to ameliorate.” On Wednesday, Judge Albright signed their agreed order postponing the trial.
On December 23, the Federal Circuit appeared to give Intel an early Christmas present by granting Intel’s Petition for Writ of Mandamus, vacating the previously set trial date of January 11, 2020 in Waco (see our previous post HERE regarding Intel’s petition and the November 20 transfer back to the Waco Division). However, the Circuit Court was very deliberate in its limited holding and, more importantly, explicit in what it was not holding, overtly stating “we do not hold that the district court lacks the ability to effectuate holding trial in the Waco Division.”
The Federal Circuit then essentially handed the parties and the district court a road map for its next steps, declaring: “We only hold that it must effectuate such result under appropriate statutory authority, such as moving the entire action to the Waco Division after concluding, based on the traditional factors bearing on a § 1404(a) analysis, that ‘unanticipated post-transfer events frustrated the original purpose for transfer’ of the case from Waco to Austin originally. In re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983). Such analysis should take into account the reasons of convenience that caused the earlier transfer to the Austin division.” The Circuit Court concluded that it takes “no position on whether such finding can be made here.”
To absolutely no one’s surprise, VLSI immediately (read: later that very same day) filed an emergency motion to transfer venue from Austin to Waco for convenience, conducting the 1404(a) analysis laid out by the Federal Circuit. Intel’s victory was short-lived as it then spent the holiday responding to VLSI’s Motion in preparation for a December 30 hearing.
During the hearing, Judge Albright indicated that he would grant the Motion. However, he also stated that he would set the trial for mid-February, instead of January 11, in order to give Intel time to seek relief from the Federal Circuit yet again. On December 31, Judge Albright issued his written opinion and order granting VLSI’s Motion and transferring the case back to the Waco Division. Taking heed of the Federal Circuit’s directive, he went factor by factor and even included a chart comparing the weight of each 1404(a) factor at the time of the original transfer to Austin compared to the weight right now.
We can expect another Petition for Writ of Mandamus to be filed by Intel shortly. It seems the Federal Circuit will then have to bring some clarity as to the affect that the COVID-19 pandemic has on the traditional convenience factors and how it affects the overall transfer analysis. We will keep you updated!