Motion to Dismiss or Transfer


Judge Payne recommended denial of the motion to dismiss for improper venue, finding that the defendant did have a regular and established place of business in the EDTX when suit was filed. He also recommended that the motion to transfer venue to the San Antonio Division of the WDTX be denied, finding that the defendant had not shown that that forum was clearly more convenient. (It’s unclear if this was the map of Texas that the defendant was using).

Just A Reminder That If Your Kids’ Birthday Cakes Don’t Look Like This You’re Doing Parenting Wrong. And Motion to Compel Granted on Deficiencies in E-Discovery Production

In a scene reminiscent of any number of Star Trek episodes where the bad guys gain access to sensitive computer data, the plaintiff alleges that the defendant over-accessed plaintiff’s medical imaging systems to generate fake access credentials. The court granted plaintiff’s second motion to compel, requiring defendant to (1) provide “cross-walk” information relating a revised production to the original, (2) fix issues with production of text messages, (3) reproduce documents in the (organizational) form in which they are maintained, and (4) properly mark documents with their confidentiality designations.

Another Motion to Dismiss In A Trademark Case

But the procedural context is twisted in this case involving a whiskey distillery. The court previously remanded the state law causes of action, so the question presented was what to do with the dec action? After analyzing the Trejo factors which assist a judge in the discretionary call of whether to keep a case that has a parallel state court action, Judge Pitman concluded that all of the “federalism, fairness, and efficiency” factors weighed in favor of dismissal.

Motion to Dismiss Granted in Part

Plaintiff sought dismissal of the defendant’s claims that the plaintiff – a false eyelash manufacturer – engaged in false patent marking and false advertising in this case dealing with false eyelashes. (You can sort of see the theme, can’t you?) Judge Gilliland concluded that the false patent marking claim was not time-barred, that there was marking of an unpatented article, sufficient facts were pled to allege the requisite intent to deceive, and there was a sufficient showing of a competitive injury to require denial of the motion to dismiss. But the court did recommend granting the motion to dismiss the false advertising claim, noting that statements of inventorship – here “innovator” – are not actionable as false advertising, and recommended dismissal of the defendant’s claims against an individual as lacking personal jurisdiction.

Patent Verdict in Marshall

In a scene somewhat less relaxing than this one canoeing at Fern in December, a Marshall jury in Judge Gilstrap’s court returned a verdict in the ATL v. CosMX case last Friday. All four claims were found infringed, but two were proven invalid. At least one of the four was willfully infringed (yes, I know what you’re thinking and no, we don’t know from the verdict form whether it was the ones that were not found invalid). Damages were set at $3,701,108. The jury also found that a letter by the plaintiff was not shown by clear and convincing evidence to be both objectively baseless and an attempt to interfere with a business relationship of a competitor through use of the litigation process, nor did the plaintiff engage in anticompetitive conduct.