Early filing trends – some of interest – are starting to emerge in Waco patent filings post – Wacopalypse.
The first several filings following Chief Judge Garcia’s order went to Judges Counts, Yeakel (2), Albright and Rodriguez, which, candidly, would make a hell of a fun table at a bench/bar event. What happened next may give a clue what will happen with at least part of the Waco filings.
First, Judge Yeakel transferred one of his cases back to Judge Albright, noting that prior related case had been filed with him, and a later related case went to Judge Albright automatically. This underscores that at least some future filings are likely to go to Judge Albright given his involvement with prior related filings pursuant to the Western District rule requiring related cases to go to the same judge. This is a pretty standard rule – I remember when the Eastern District adopted it after a lawyer had his secretary stand at the counter in Marshall and file cases until he drew the judge he wanted – he then dismissed the prior cases and attempted to proceed in the one where the judge draw was what he wanted. Uh, no – the court reassigned his case to the judge who got the first case, and implemented a local rule requiring this in future cases.
Another interesting development – which was not unexpected – was that some of the other Western District of Texas judges may routinely refer patent cases filed in Waco which are assigned to them to Judge Gilliland for pretrial development since he has availability and expertise. On information and belief, as the saying goes, at least one judge has done this in at least one case already.
And, saving the best for last, Judge Counts of the Midland/Odessa and Pecos Divisions (which have only one assigned district judge but a hella lot of cactus) issued a couple of orders after Judge Garcia’s order duplicating many of Judge Albright’s procedures. One carves out patent cases from the normal magistrate referral process for those divisions, allowing Judge Counts to determine whether to refer patent cases to a different magistrate judge. The other replicates in a standing order (see below) many of Judge Albright’s procedures, so that cases before Judge Counts or whoever he assigns the case to will have similar procedures. So the certainty with respect to judicial assignment for patent cases that no longer exists in Waco but which does exist in the Midland/Odessa and Pecos divisions may start coming into play. (Patent cases are not unknown in Midland – I’ve had one and have a nonpatent case headed for trial there soon). So the percentage of Waco filings which could have familiar procedures is likely to grow, even if the judges are different.
There have been a number of other filings which were quickly dismissed, which may represent (as happened after TC Heartland came out) filers that just hadn’t read the papers and didn’t realize that the rules had changed. Not enought datapoints yet to write the Wacopalypse epilogue, much less see whether there might be a sequel in the works.
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