The issue of when venue discovery is proper comes up frequently in patent litigation post TC Heartland, and especially since the Federal Circuit clarified in In re ZTE that the plaintiff, not the defendant, bears the burden of showing that venue is proper. This opinion sets out Judge Gilstrap’s standard on when venue discovery is proper, as well as providing another illustration of when a physical place of business that is regularly established is “of the defendant”.
Apparently experts are an issue in the black dirt part of the district as well, judging by these opinions from Judge Mazzant last week. They cover topics ranging from the “rebuttal” issue Judge Payne also addressed last week to lawyer-written reports, sick experts, and other more bespoke subjects.
Today saw one summary judgment ruling and five Dauberts roll out from the chambers downstairs across the street, making things about as busy downstairs this week as they were when this photo of Judge Payne’s future courtroom was taken in 1940-ish. So let’s take a quick look, shall we?
Some of the most fun you can have in a courthouse is trying to enforce a settlement, or defend against one you didn’t think you had. Unfortunately for legal scholars like you, dear reader, there are not a lot of cases that go to the mat hard enough on this issue of contract interpretation to generate a written opinion with tests and prongs and all that good stuff.
That’s why I was particularly interested to see this recent opinion affirming a magistrate judge’s recommendation that such a motion be denied.
Several months ago I announced the last ruling that dealt with a claim of waiver for failure to assert an improper venue claim timely following TC Heartland. I was premature, because there was still this case, which was stayed due to pending IPR proceedings three months before Heartland was decided. When the stay was lifted several weeks ago, the defendant asserted an improper venue argument, and the plaintiff asserted that the defense had been waived.
Section 101 rulings are always welcome because they show where judges are on specific fact patterns based on the current state of the appellate caselaw. Normally I’d say that the facts are the variable, not the caselaw, but on this subject the first can vary, and the second can … evolve. This week provides another data point on 101 rulings, with an opinion that drops findings into the no/no, no/yes, yes, and “nope” categories.
This is a proposed national class action dealing with annuity contracts. Defendants sought summary judgment as to the plaintiff’s breach of fiduciary duty and breach of contract claims. The Court’s ruling had something for each side.
Spoiler alert: they’re both granted in part.
But it’s always worth laying out the facts in motions to compel to see what the court found justified relief and what didn’t. In addition, this is the rare order that even mentions the new “proportionality” standard in amended Rule 26.
One of the more recent examples of the venue order is this one from Judge Payne last month which denies a motion seeking a transfer to Delaware . What makes this order different than the run of the mill orders – what Justice Scalia would have called “mine run” for reasons that still baffle legal scholars – is that it’s based on some forum selection clauses in prior patent license agreements, as well as a judicial economy argument due to prior Delaware cases.
And now from the tart side of the menu, we have an order excluding an expert’s testimony as not based on sufficient qualifications only a couple of weeks before trial. No, no leave to submit an additional report was granted – didn’t you hear me describe it as “tart?” If leave had been granted I would have described it as creamy, with a hint of cinnamon and nut in the crust.