Defense to Transfer Not Waived After All

This pair of orders reflects an interesting turn of events in what had been fairly routine venue dispute.

In the first order, dated September 15, Judge Albright granted Apple’s motion to transfer as unopposed because the parties filed a joint notice modifying the venue response deadlines in violation of the court rules.  The court noted that its standing order regarding unopposed requests to change deadlines does not allow parties to stipulate to change a deadline that affects the court’s ability to hold a scheduled hearing.  Because the extension would have set briefing on the same day as the scheduled Markman hearing, the extension was improper.

In the second order, dated September 20, the court denied the plaintiff’s motion to reconsider its transfer decision based on the plaintiff’s misunderstanding that changing the briefing deadlines had no effect on a hearing.  He noted that his order governing proceedings explicitly codified the SK Hynix mandate from the Federal Circuit. OGP § VI (“If a motion to transfer remains pending, the Court will either

promptly resolve the pending motion before the Markman hearing, or postpone the Markman hearing.”).  Accordingly, he wrote that the parties should have understood that they must timely filed their transfer briefing so that the court could issue its opinion on any transfer motion before the Markman hearing.

But the court granted reconsideration anyway, apparently accepting the argument that while the parties bear joint responsibility for agreeing to change the briefing deadline without filing a motion, the court’s order disproportionately impacts plaintiff by granting the defendant’s motion to transfer.  The court noted that since filing of the motion to reconsider scheduling conflicts arose requiring the court to postpone the Markman hearing anyway, thus giving the court additional time to consider the parties’ late briefing while avoiding the disproportionate impact.

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