Federal Judiciary

Court Provides Dual Transfer Analysis (In re VW I; In tre VW IIb)

By Michael Smith

Aloft Media, LLC v. Adobe Sys. Inc., 2008 WL 819956 (E.D. Tex. Mar. 25, 2008)
Judge: John D. Love
Holding: Motion to Transfer DENIED
This is a patent case in which a Texas corporation headquartered in California sued Adobe and Microsoft (Delaware and Washington companies, respectively, headquartered in California and Washington).  Defendant Adobe sought a transfer to California.  The interesting thing about this opinion is that it's the first (at least that I have seen) since In re VW IIb was vacated pending the en banc proceeding on May 19.  Since the parties had briefed the issue under In re VW IIb, Judge Love had the following to say about his analysis, which applied both In re VW IIb and the prior standard, and found that the defendant had not justified a transfer under either standard:

Due to the uncertainty surrounding the applicable legal standard governing Section 1404(a) venue transfer motions, the Court will proceed with the following dual approach. First, the parties have largely submitted their positions based upon the legal standard articulated in Volkswagen II. The Court further acknowledges that the Volkswagen II opinion, though vacated, is the Fifth Circuit's most recent discussion of the venue transfer standard, and in comparison to prior Fifth Circuit opinions, appears to adopt a slightly lower threshold favoring the party moving for transfer. For these reasons, the Court will provide the moving party with the benefit of the doubt and apply the standard set forth in Volkswagen II. In doing so, the Court finds that the circumstances of this patent case are sufficiently distinguishable from the event-specific circumstances of the Volkswagen II products liability case, such that the circumstances of Volkswagen II do not control. Applying the Volkswagen II standard, the Court finds that transfer of venue is not appropriate for the reasons discussed below.

Second, and in the alternative, the Court recognizes that the Volkswagen II opinion has been vacated by the granting of rehearing en banc. In addition, Adobe states in its Motion that it does not rely solely upon the standard expressed in Volkswagen II. ...  For these reasons, the Court will consider in the alternative Adobe's Motion under the Section 1404(a) legal standard that existed prior to the Fifth Circuit's discussion in Volkswagen II. Applying the previously existing standard, the Court similarly finds that transfer of venue is not appropriate for the reasons discussed below.

Full post as published by Eastern District of Texas Federal Court Practice on April 15, 2008 (boomark / email).