“So far as the briefing before this court reflects, the only factor that may have changed as a result of the COVID-19 pandemic is the public interest ‘court-congestion’ factor—which seems, at most, to slightly weigh in favor of re-transfer.” – CAFC
On Friday, October 1, the U.S Court of Appeals for the Federal Circuit (CAFC) ordered the latest in a series of recent grants of petitions for writ of mandamus, ordering Judge Alan Albright’s court to vacate its decision to re-transfer a case between Apple and Fintiv from Austin, Texas back to Waco, Texas.
Fintiv originally filed the case in the Waco division of the U.S. Court of Appeals for the Western District of Texas in December 2018, and in September 2019 the district court granted-in-part Apple’s motion to transfer the case to Austin. The court denied Apple’s request to transfer the case to the Northern District of California, but agreed that Austin was more convenient. The trial was scheduled to begin in October 2021, but in September, the court ordered transfer back to Waco, explaining that the COVID-19 pandemic had suspended jury trials for the forseeable future.
In its analysis, the CAFC invoked its reasoning in In re Intel, where the court said that the only authority for an intra-district re-transfer without full consent of the parties is 28 U.S.C. § 1404(a), citing from a Fifth Circuit Court of Appeals case, In re Cragar Indus., Inc.. That decision said:
“If the motion to transfer is granted and the case is transferred to another district, the transferee-district should accept the ruling on the transfer as the law of the case and should not re-transfer `except under the most impelling and unusual circumstances’ or if the transfer order is `manifestly erroneous.'” (Citing United States v. Koenig, 290 F.2d 166, 173 n. 11 (5th Cir.1961)).
The CAFC further explained that a transfer analysis should be “based on the traditional factors bearing on a § 1404(a) 12 analysis” and “should take into account the reasons of convenience that caused the earlier transfer.”
In this case, said the CAFC, the district court did not perform that analysis and gave the parties and reviewing courts no way of understanding how it had reached its conclusion. The district court’s statement that jury trials had been cancelled indefinitely was “minimal” and did not employ the Section 1404(a) factors, said the CAFC. Further, there is no evidence that the Austin court is currently closed for trial. “The district court even acknowledged that some civil trials are proceeding in Austin and that there is a possibility of ‘being able to use a courtroom in Austin’ and ‘mov[ing] forward with [the trial] in Austin,’” said the CAFC.
While the district court’s statement that “the intervening COVID-19 pandemic has frustrated the original purpose of transferring this action to the Austin Division” seemingly attempted to address the CAFC’s reasoning in In re Intel, there is not enough evidence that the COVID-19 pandemic has created a compelling reason to override the original purpose for the transfer from Waco to Austin, i.e., convenience and “the interest of justice.” The Section 1404 analysis was performed to arrive at the original transfer decision, relying chiefly on “the fact that there are no sources of proof in the Waco Division and that the parties and a relevant third party have a significant presence in Austin, but not in Waco,” said the CAFC. Additionally, Apple’s employee witnesses will all be traveling from California, and there are no direct flights to Waco. The court concluded:
So far as the briefing before this court reflects, the only factor that may have changed as a result of the COVID-19 pandemic is the public interest “court-congestion” factor—which seems, at most, to slightly weigh in favor of re-transfer. But as we have said previously, this factor is the “most speculative” of the factors bearing on transfer and “should not alone outweigh all . . . other factors.” In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009). This is particularly so here, given the district court’s acknowledgement that there is a possibility of “mov[ing] forward with [the trial] in Austin.” Also, court congestion was not a factor relied on by the district court as a basis for transferring the case to Austin.
The Federal Circuit has taken umbrage with Judge Alan Albright’s motion to transfer practices lately. Between Friday, September 24, and Friday, October 1, the court granted three mandamus petition relating to motions to transfer from the Western District of Texas.
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