Federal Circuit’s Wave of Judge Albright Transfer Reversals Keeps Rolling
In the span of a single week, the Federal Circuit has reversed two more decisions from District Judge Alan D. Albright that denied convenience transfers, granting mandamus for the defendants in two separate cases: one filed by Jenam Tech, LLC against Google and the other filed by Correct Transmission LLC against Juniper Networks. These latest rulings continue a wave of mandamus writs issued in the past few weeks by the Federal Circuit against Judge Albright, the latest skirmish in a long-running battle over his handling of transfer motions that began in mid-2020. While Judge Albright briefly appeared to begin following the court’s guidance earlier this year, these subsequent appellate reversals indicate that the Western District of Texas judge may not intend to change course after all.
Judge Albright has been reticent to transfer on convenience grounds since taking the bench in 2018, setting a high bar for defendants seeking that relief and rarely granting such motions. This tendency began to draw the ire of the Federal Circuit in summer 2020, including one decision on mandamus in which the court ruled that he improperly weighed the applicable factors to deny Adobe a convenience transfer to the Northern District of California. That November, the appellate court granted a mandamus petition from Apple (in In re: Apple), ruling that Judge Albright erred in concluding that a variety of the applicable factors weighed against transferring a case filed against Apple by Fortress Investment Group LLC subsidiary Uniloc 2017 LLC (also to the Northern District of California). That particular ruling prompted a dissent from Circuit Judge Kimberly A. Moore, who argued that the majority’s analysis exceeded the permissible bounds of mandamus review and improperly disturbed the district court’s factual findings and conclusions.
By the second quarter of 2021, though, Judge Albright began to give the impression that he would adjust his approach due to Federal Circuit pushback. Notably, in late April, Judge Albright granted a transfer motion filed by Google in litigation brought by InfoGation Corporation, in which he took a markedly different posture with respect to certain transfer factors, in recognition of the Federal Circuit’s rebukes. In part, he applied factors related to witness travel distance less rigidly and placed less emphasis on his district’s quick time to trial.
However, Judge Albright would subsequently revert to his old approach, as indicated by transfer rulings subsequently addressed by the Federal Circuit on mandamus, including one in which the appellate court issued its first precedential reversal of such a decision. In the first of two recent rulings in favor of Samsung (In re: Samsung I), the Federal Circuit faulted Judge Albright for allowing venue “manipulation” by plaintiffs Ikorongo Technology, LLC and Ikorongo Texas, LLC, and for misapplying a variety of factors in a similar manner to prior rulings overturned by the appellate court.
As noted in RPX’s upcoming third-quarter review, subsequent mandamus reversals—including a wave of new decisions handed down as Q3 came to a close—have highlighted the same recurring legal issues as in Samsung I and prior cases, strongly suggesting that Judge Albright does not intend to change his approach. For example, the Federal Circuit repeatedly held in those cases that he underweighs the convenience for and/or cost of attendance of witnesses (in Samsung, In re: DISH, In re: Juniper I, In re: Google I, and another In re: Samsung decision involving another plaintiff), discounts sources of proof in the transferee district (In re: Juniper I, In re: Google), and misapplies factors related to compulsory process and willing witnesses (In re: Samsung I, In re: DISH, In re: Hulu, In re: Juniper I). The court has also flagged as erroneous Judge Albright’s tendency to count a defendant’s generalized presence in the district—e.g., through local offices not connected to acts as infringement—as supporting the “local interest” factor (In re: DISH, In re: Juniper I, In re: Google I). And a particularly long-standing point of contention, among those dating back to reversals in 2020, has been Judge Albright’s insistence that his district’s quick time to trial tips the “court congestion” factor against transfer (In re: Samsung I, In re: Hulu, In re: Juniper, In re: Google I), despite previously adjusting his approach—ruling, in Juniper, that he erred by relying on aggressive scheduling orders versus actual statistics on court congestion.
In re: Google II
The Federal Circuit’s mandamus decisions this past week flagged these same types of repeated legal errors, concluding in both cases that Judge Albright abused his discretion.
The court identified several such errors in its ruling for Google (In re: Google II) (2021-0171). First, the Federal Circuit decided that he was wrong to hold, as he has previously, that the factor concerning the convenience of willing witnesses applies primarily to nonparty witnesses, not party witnesses. Rather, the court explained that under its prior rulings in In re: Google I, In re: Hulu, In re: Apple, and In re: Samsung I, district courts “‘must consider’ the convenience of ‘possible party witnesses’” (citing Samsung I). Under that proper standard, the court concluded that Judge Albright erred in finding that this factor weighed against transfer, despite the fact that multiple Google witnesses resided in the Northern District of California (the transferee district) and none in the Western District of Texas (with the plaintiff’s sole party witness residing two hours away by car, and outside the district). Moreover, the Federal Circuit held that Judge Albright had been wrong to place significant weight on the relative distance that witnesses outside the respective districts would have to travel, noting that in In re: Apple and In re: Google I, it held that “the difference in distance is not as important as the difference in travel time and the fact that the witness would be required to be away from home for several days in any event”. As a result, the court held that this factor should have weighted “strongly in favor of transfer”.
Additionally, the Federal Circuit identified another error in Judge Albright’s application of the “court congestion” factor, which he had based upon the argument that transferring the case and then setting a new schedule with a new judge would cause undue delay. But under Fifth Circuit precedent, countered the court here, judges may not factor in delays caused by transfer under such circumstances. In any event, the Federal Circuit held, Judge Albright “in essence weighed against transfer that the Northern California court would be unlikely to adopt the same aggressive schedule as previously ordered in this case”—and, as noted above, the Federal Circuit has previously held that aggressive scheduling is not a proper basis for the court congestion factor.
Also erroneous, per the Federal Circuit, was Judge Albright’s decision that the factor concerning the location of sources of proof weighed “solidly against transfer”. While Judge Albright acknowledged that the bulk of the evidence would likely come from Google and is primarily located in the Northern District of California, he countered that the evidence would be easily accessible electronically. In deciding this factor weighed against transfer, despite Fifth Circuit precedent that focuses on the physical location of such evidence, Judge Albright was acting consistently with his prior observation that this precedent is out-of-step with the modern realities of patent litigation. Yet the Federal Circuit pointed out that the Fifth Circuit has held this factor to still be relevant regardless of remote access to evidence.
Perhaps the most significant error flagged by the Federal Circuit was Judge Albright’s reliance on Google’s generalized presence in the Western District of Texas for the “local interest” factor—a position for which the court has previously admonished him in In re: DISH, In re: Juniper, In re: Google I, and In re: Apple, as noted above. Rather, under Apple, there must be “significant connections between a particular venue and the events that gave rise to a suit” (citation omitted; emphasis added in Apple). By relying solely on the defendant’s generalized presence, Judge Albright had “improperly conflate[d] the requirements for establishing venue under 28 U.S.C. § 1400(b) and the requirements for establishing transfer under § 1404(a)” (again citing Apple).
Despite Judge Albright’s determinations to the contrary, the Federal Circuit ultimately found that “the center of gravity of this action is clearly in the transferee district, and decidedly not in the Western District of Texas”—noting that apart from Google’s generalized presence in the Western District, “there is nothing at all that ties this case to” that venue.
In re: Juniper II
The Federal Circuit’s October 4 decision in In re: Juniper Networks (In re: Juniper II) rested even more explicitly upon its prior mandamus reversals of Judge Albright’s transfer rulings (2021-0156). In particular, the court noted that “[t]his case involves remarkably similar facts and many of the same erroneous conclusions” as its decision in In re: Juniper I, which was its second precedential rebuke of such a ruling (following In re: Samsung in June). That overlap included Judge Albright’s application of the willing witness factor, under which he found that the convenience of party witnesses is “attenuated”. But the Federal Circuit reached the opposite conclusion in Juniper I (and in In re: Hulu), and held that the same reasoning applied in Juniper II. Relatedly, as in Hulu, the Federal Circuit determined that the district court was wrong to categorically reject all of the defendant’s prior art witnesses.
Second, the Federal Circuit once again found error in Judge Albright’s determination that the defendant’s generalized presence in his district tipped the local interest factor against transfer. As established in multiple other rulings like Juniper I and Apple (and as discussed above), only connections to the transferor forum that are related to the suit at hand are relevant for this factor—and here, “Juniper’s offices in Austin have no relation to this case”, while plaintiff Correct Transmission has even fewer ties to the forum (namely, none) than the NPE in Juniper I.
Additionally, the Federal Circuit reached a similar conclusion on the “sources of proof” factor as discussed above for Google II—reiterating that despite the ease of electronic access to documents, this factor remains relevant under Fifth Circuit law. However, the court determined that the compulsory process factor did weigh against transfer, just not to the same extent that Judge Albright had determined—disagreeing his finding that certain Juniper witnesses in Texas were “key” without properly considering that Juniper had shown other employees in the transferee district could provide the same information. This made the factor weigh only slightly against transfer.
Finally, the Federal Circuit ended on the familiar refrain of court congestion, again repeating its growing body of caselaw establishing that aggressive scheduling orders are not the proper basis for applying this factor—despite Judge Albright’s conclusion, once again, to the contrary.
For more on the Federal Circuit’s ongoing tussle with Judge Albright, see RPX’s coverage of the Samsung I decision: “Federal Circuit Undoes Another Judge Albright Transfer Decision, Chiding Plaintiffs for Venue “Manipulation’” (July 2021).