Dismissal Before or After Deposition?

Judge Albright granted the plaintiff’s motion to dismiss their claims against a group of defendants. The court declined to enforce a purported agreement that the remaining defendants could depose one of the defendants to be dismissed before dismissal, finding that there was no plain legal prejudice arising from the dismissal. “The Objecting Defendants, with a little extra time and expense, can use a subpoena to obtain the desired deposition,” the Court noted.

Non-Standard Motions in Limine

Judge Albright’s adoption of Judge Gilstrap’s standard motions in limine means that there are only a handful are presented at each scheduling conference. In this case, plaintiff had three, and defendant had two. Three were granted – meaning approach the bench before going into the subject – one was denied with the party directed to simply object, and the fifth was denied with an instruction as to what the party could and could not say.

Motion to Exclude Damages Expert Granted

Magistrate Judge Lane granted the motion as to the plaintiff’s damages expert, applying the recently amended FRE 702, which requires that the proponent bear the burden of showing the expert testimony more likely than not complies with the rule. He concluded that the plaintiff’s expert was improperly using sales of products which were not accused of infringement as the royalty base to determine damages, rejecting the expert’s opinion, which relied on the premise that because the accused features allowed Microsoft to achieve more of a specific, albeit unaccused feature on a server, that the accused features could be valued based on the amount of a specified unaccused feature on the network.

Motion For Summary Judgment Of Noninfringement Granted

This order follows up on Judge Albright’s ruling at final pretrial conference in this case striking portions of the plaintiff’s expert report on infringement for substituting new infringement theories, and accordingly dismissing the plaintiff’s case with prejudice.  In response to a motion for reconsideration, it vacates and supersedes the prior order.

2024 J. Stephen Ravel Award – Brian Nash

I wanted to extend my congratulations to Brian Nash who, earlier this month, was the first recipient of the J. Stephen Ravel Award, which was presented by John Guaragna at the inaugural Central Texas Bench Bar Conference in Austin.  The J. Stephen Ravel award will be presented annually to a lawyer practicing before the federal courts in Central Texas who exemplifies the extraordinary qualities of our late colleague Steve Ravel.  Steve, who passed away suddenly in 2023, was an incredibly accomplished attorney and good friend to many among the Federal Bar in Central Texas.  Steve was a gregarious and charismatic lawyer who displayed unmatched collegiality, professionalism and integrity in all that he did.  With a friendly nature and incessant positive spirit, Steve exemplified the idea that lawyers could sometimes disagree – without being disagreeable. Upon his passing, I had this to say about Steve and his legacy:  “Steve was always such a pleasure to work with in whatever capacity – with him, against him … – it didn’t matter. He was always the first person you wanted to say hello to when you walked into a room – but he’d always beat you to it.  I never saw him start or end a visit without a smile on his face, and like many reading this, I am acutely aware that my life is smaller, darker, and grumpier without him in it.  But I am reminded that we can all choose to emulate Steve and be that light for those around us.”  

Two WDTX Vacancies Filled

The Senate approved two of President Biden’s nominees for the Western District of Texas last Friday. It voted 88-7 on Friday to confirm Ernest Gonzalez, a senior attorney adviser in the U.S. Department of Justice’s Criminal Division, Narcotics and Dangerous Drugs Section, and then 90-8 to confirm El Paso Magistrate Judge Leon Schydlower, who has been on the bench since 2016. Mr. Gonzalez was a EDTX AUSA from 2003 to 2023, and was originally nominated for the position created when Judge Montalvo of WDTX – El Paso took senior status position, but was then renominated for the vacancy created when Judge Martinez of WDTX – El Paso passed. Judge Schydlower was the reverse – he was nominated for the Martinez vacancy, then withdrawn and renominated for the Montalvo one. Both positions were classified as judicial emergencies.