The photo on the left shows the current state of Interstate 10 outside Beaumont. Accordingly, the Court has announced that the EDTX courthouses in Beaumont and Lufkin are closed until Tuesday, September 5. In General Order No. 17-14, Judge Clark states: Counsel or Parties who believe that deadlines for filing of any motion in a pending case have been, or will be, immediately affected by the recent flooding in Texas may be offered relief by the filing of a motion for extension, even if past the filing deadline. Any late-filed request for extension should set forth in detail the circumstances for such late filing. The Court’s electronic filing system remains available and will be monitored for emergency matters.
Most lawyers who practice in federal court have a love/hate relationship with CM/ECF – the court’s case management / electronic filing system. But in addition to being an invaluable flashback to the ’90s, and the only reason PACER still exists outside of a computer history haunted house, CM/ECF also provides a lot of information about filings – although not always the information it appears to. I wanted to take a few minutes today to point out what a typical NEF (Notice of Electronic Filing) does – and does not – tell you, and where you can go to be sure you’re getting the accurate information about a filing.
The last time hurricanes hit the Gulf Coast, significant numbers of residents from New Orleans, Beaumont and elsewhere came to Marshall to shelter, in some cases staying for weeks or longer. News reports are that hundreds of law offices in the Gulf Coast area – including Houston and now Beaumont – are shutting their doors temporarily and relocating or working for home.
If any readers are, or know of displaced lawyers from the area that have headed to northeast Texas for shelter but are needing temporary office space somewhere nearby until their firms reopen, please refer them to me. When we renovated the historic Hub Shoe Store into office space a few years ago we set aside the entire east side as visiting office space for trial teams with all the necessary amenities, so we can host some displaced counsel that need office or conference space until things get back to normal on the coast.
The issue of whether venue is proper in a patent case post-TC Heartland turns most often on the court’s analysis of whether the defendant has a “regular and established place of business” in the district. A recent opinion by Judge Gilstrap, applied his four-factor test set forth in Raytheon v. Cray before considering the defendant’s alternative motion to transfer based on convenience.
But the Court’s analysis in this case underscores something I say a lot, which is that it’s shortsighted to view venue statutes in isolation. The venue statutes enacted by Congress set for a coherent multistep scheme for determining where a case will be tried. The first step involves an initial Congressional decision as to which federal districts a case may be brought in. The second – what I refer to frequently as a “safety valve” – involves a judicial determination whether a case that is brought in an district of proper venue should nonetheless be transferred to another district for convenience reasons. Given that motions to transfer are granted at a very nearly exactly 50% rate in EDTX over the last three years, the interaction between these two inquiries bears more attention than it gets – because just because a case is filed here doesn’t mean it will be heard here.
Friday afternoon the Trump Administration announced the nomination of Andrei Iancu to be the next Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO). Mr. Iancu has served as the managing partner of Irell & Manella LLP, practicing with the firm’s litigation and intellectual property practice groups.
I had the pleasure of co-presenting with Andrei a few years back on a panel on the EDTX that I thought might be of interest of readers. I wanted to provide the relevant cites re: the panel discussion and a few comments about it and related publications:
This is a product liability case arising out the use of a treestand, shown at right. For non-East Texans, treestands are used for hunting when you don’t have a conventional stand, an exemplar of which is shown at left. The deer is clearly Photoshopped in since they never come this close to any deer stand I have ever been associated with.
Deer stands for most hunters involves a gun. My dad, on the other hand, favored Snickers snack-size bars and cigarettes, and usually left the gun at the house. (If you stop and think how much work you’ve bought for yourself if you actually kill a deer, forgetting the gun makes a lot of sense).
But try not to picture the danger of a redneck climbing a tree to try to get into the aforementioned treestand with a rifle, and return to comforting thoughts of scheduling orders, which in this case involved, as they are wont to do, a deadline to amend pleadings. In this case, the allegedly injured would-be deer assassin sought to amend his pleadings two months after the deadline.
Another flavor of waiver argument post-TC Heartland is when a defendant files its motion to dismiss under FRCP 12(b)(3) after filing its answer, in violation of the requirements of Rule 12(h). The question presented to yet another an Eastern District court earlier this week is whether raising the improper venue defense in the answer preserved the party’s ability to file a motion after the answer was filed.
The 2017 EDTX bench/bar has been set for October 4-6, 2017 in Plano. Registration and the program are available through the EDTX bar association website here.
The event starts with golf, shooting, or a flight of four sessions on legal topics Wednesday afternoon, followed by the opening reception, which is in turn followed by a screening of Uncertain: The Movie, which documents a remote corner of the EDTX’ Marshall Division. Rolling Stone calls it Uncertain “A Must See Movie” and the Wall Street Journal calls it “Beautifully Poetic”. And no, I’m not making that up. There is a good review here.
The conference opens Wednesday morning, after which I will be chairing the first panel Getting In and Getting Out of Texas. Drilling Into Questions Yet Unanswered By TC Heartland in the Age of Cyberspace, which leads off two more days of terrific panels and speakers.
The panels include the EDTX judges, of course, as well as judges from the Second (Cabranes), Fifth (Costa) and Federal (Stoll) Circuits, and judges from the following districts ranked in order of barbecue quality: WD Texas (Yeakel), ND Texas (Lynn), SD Cal (Bencivengo), Delaware (Burke, Thynge), WD Pa. (Bissoon) and New Jersey (Linares). Sorry about that, New Jersey, but you’re just never going live down that Pace ad.
Earlier today I posted about the situation in which a plaintiff files a patent suit, motions to dismiss (often arguing lack of patentable subject matter under Section 101) are filed, and the cases are dismissed before the motions are resolved. This litigation provides an example of this that later nonetheless resulted in a dismissal on the merits of 101 motions, but also illustrates several other things, including filing trends from 2015-to pre-TCH 2017 as bulk filer cases dropped off, as well as changes in case management locally – against as the bulk filings dropped from 2015 levels.
As I’ve posted on previously, I cowrote and am co-presenting Jurisdiction & Venue: Where Does the Case Belong? at this year’s TexasBarCLE Advanced Civil Trial course with David Lopez of San Antonio. Davis covered San Antonio, aka the “fun” location last month, and I covered Dallas last week. Houston is not till October, and that’s usually a coin toss. No offense to you 214 and 713 lawyers – it’s just that you don’t have a lazy river and s’mores on site like the San Antonio hotel does.
Attached is the paper and the slides, credit for which goes solely to David. If you want to know why there’s a photo of Sam Elliot as Brig. Gen. John Buford in the movie Gettysburg … go watch Gettysburg and see what he says about the importance of good ground.
(Ed. note: picture of hotel not taken during my presentation).