Public reprimand for “inexcusable” lack of diligence in connection with venue declaration

Fourteen years ago now, two residents of the Eastern District of Texas drove the few miles that separated their homes from LBJ Freeway in Dallas, where they were rear-ended by a truck driver from Tyler, resulting in the death of their daughter/granddaughter in the back seat. Several months later the survivors of that collision, who had since moved out of the Eastern District, filed a product liability case in the Eastern District.

In its rulings (there were three) on the petition for mandamus of the district court’s order denying the defendant’s motion to transfer venue the Fifth Circuit held that it was the plaintiffs’ current residence, i.e. the residence at the time the suit was filed, that was relevant, not their residence at the time the cause of action arose. The consequences of that ruling have affected the actions of parties, district courts and the Federal Circuit ever since, including in a recent order publicly reprimanding an attorney for inaccurate factual contentions contained in his client’s declaration opposing a motion to transfer.

“Stream of Commerce” Personal Jurisdiction

This is a product liability case in which the third party defendant, a foreign corporation, sought dismissal due to lack of specific personal jurisdiction. The magistrate judge’s analysis of the motion sets forth the current status of the “stream of commerce” approach to personal jurisdiction, analyzing both the foreseeability of the use in Texas, as well as whether the cause of action arose out of the third party defendant’s forum-related contacts, and whether the exercise of jurisdiction would be fair and reasonable. An added benefit is the district court’s order, also copied below, accepting the magistrate judge’s recommended disposition, because it addressed a couple of new arguments raised by the objections.

Renewed Motion to Stay

Okay, the analogy is imperfect, but if “renewed” isn’t legalese for “please” I don’t know what is. But what was actually at stake was a little less dramatic than Toby’s case. The defendant in this case was simply renewing its motion to stay the case pending IPR proceedings after the proceedings were instituted by the PTAB. But the facts were a little outside the norm.

Reassignment of EDTX Civil & Criminal Actions

Whenever the makeup on a district court’s bench changes, though retirements or the addition of new judges, the docket is reallocated.  Last week saw a significant reallocation of the Eastern District’s cases due to the arrival on the bench of Judge Jeremy Kernodle in Tyler and changes in Senior Judge Ron Clark’s docket.  I wanted to go through the changes and what they mean in the affected divisions.

More Proportionality; Motion to Compel Sales Information Granted in Part

This is an order resolving a motion to compel on damages issues in a patent case.  At issue was whether the Defendants, a parent and a subsidiary, were required to provide financial data on infringing sales made by the parent to entities other than the named sub, and whether Defendants were required to provide financial data for certain additional products.  The Court granted one but denied the other, citing the “p” word and providing a useful list of things not to do to preserve a claim for discovery.

A Streetcar Named ….

It often happens when walking with a visiting lawyer or client to or from the federal courthouse in Marshall that I get a funny look when we cross the bricked-up tracks on the north side of the old courthouse.  “Why are there train tracks in the middle of the square?” I’ll get asked.  I explain that those aren’t train tracks.  They’re from the old streetcars that used to run from the Marshall train station south the few blocks to the square. At the courthouse they split and from there went out half a dozen blocks or so to the neighborhoods east and west of downtown.
The problem is that until today I’ve never been able to find a decent photo of the trolley cars.  But here they are in a “History From Our Files” from the Marshall paper this morning, shown looking north from the steps of the then-new county courthouse shortly after 1900.
The “telephone” building on the right is now Telegraph Park, but was still there when I was little – my grandmother clipped poodles in it.  And the block of buildings on the left were razed in the mid-70s.  The reason I know that is that my mother took me out of school to watch them being torn down.  Why that was a “take Michael out of school to watch” event I never understood. But then, it was also a family event to watch concrete being poured back then – my initials are still in the sidewalk next to my office from when the concrete was patched in 1971 in front of my grandfather’s store, and he insisted she bring me out so I could put my initials in.
But immediately behind those buildings under the arrow is what was then the Marshall “opera house” which I’ve written on previously . “Opera house” was the term used in rural Texas for the places where visiting troupes of actors, singers, musicians and other entertainers played at stops up and down the railroad lines.  For example the Sherman “opera house” is now our firm’s offices in Sherman, as the above post notes.  It looks a bit different now, as shown at the dedication of the Sherman courthouse for Judge Brown a few years back.  Candidly, I preferred its original appearance, shown at right when it was a third floor and two towers taller.
But I digress.  Patent practitioners will recognize the building being pointed out as Pazzeria by Pietro – which was formerly the Blue Frog restaurant.