© 2013 The Texas Lawbook.
By Mark Curriden, JD
Senior Writer for The Texas Lawbook
(June 23) – The U.S. Court of Appeals for the Fifth Circuit has again slapped the federal trial court in Marshall for not transferring a case to another, more appropriate jurisdiction within the same district.
But some legal experts think the case is primed for a full en banc review and could be a major precedent for future disputes over venue, especially in East Texas patent cases.
A divided three-judge panel ruled last week that the U.S. District Court in Marshall abused its discretion by not transferring an employment discrimination case against Tyler-based Radmax Ltd to the company’s hometown.
Barry Moscowitz, a litigation partner at Thompson Coe in Dallas who is representing Radmax, filed a mandamus petition at the Fifth Circuit after the trial court declined to transfer the case to Tyler.
The majority found that the district court “incorrectly applied the eight relevant 1404(a) factors, giving undue weight to potential delay and not enough weight to witness inconvenience, and quoting Moore’s Federal Practice for the principle that the traditional deference given to plaintiff’s choice of forum… is less for intra-district transfers,” according to David Coale, an appellate law expert at Lynn Tillotson Pinker & Cox.
“The district court correctly labeled four factors as neutral, incorrectly labeled two as neutral that weigh in favor of transfer, labeled one as weighing against transfer that is neutral, and labeled one as weighing slightly in favor of transfer that, we find, weighs solidly in favor of transfer,” Judge Smith wrote.
“Reweighing those factors, we conclude that Radmax discharged its burden of showing that the Tyler Division is clearly more convenient than the Marshall Division and that transfer is therefore warranted,” the court ruled.
In a dissent, Judge Stephen Higginson said that while he agreed that the case should have been transferred to Tyler, he did not believe that the trial court has abused its discretion by refusing to move the case.
“In denying this motion to transfer, the district judge adhered to similar rulings by other district courts in this circuit denying motions to transfer where the parties, witnesses, and evidence were fewer than 100 miles from the existing venue,” Judge Higginson wrote.
“These insights support my view that the transfer ruling in this case was not a ‘judicial usurpation of power’ triggering mandamus rescission,” the judge said. “Several of the district court’s findings that the majority corrects pertain to factors about which we had not, until today, elaborated guidance.”
Judge Higginson said the district court demonstrated an “experienced grasp of the context-specific considerations involved with intra-district transfer.”
“Before today, we had not explored the distinction between intra-district and inter-district transfer, or taken a position on whether district courts enjoy the same degree of deference in both situations,” the judge wrote. “There is an absence of circuit precedent pertaining to intra-district transfer, and, acting in the interstices, district courts have reached different conclusions.”
Coale, who writes and edits the Fifth Circuit blog 600Camp.com, says Judge Higginson’s dissent “puts its finger on the same issue that divided the en banc court in Volkswagen – easier mandamus means less district court discretion.
“It raises a basic issue about separation of power between district courts and courts of appeal,” he says. “Since Volkswagen, the Fifth Circuit has consistently declined to grant mandamus in several settings. With this opinion, it is almost as if venue disputes get special scrutiny.”
Coale says that IP lawyers representing high-tech companies based in Collin County, which is in the Plano Division of the Eastern District, need to pay attention to this case. This case could easily mean that dozens of cases involving those companies could be transferred from Marshall.
To read the entire opinion, please visit http://600camp.com/In-re-Radmax-Ltd..
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