Former Magistrate, Now Texas Federal Judge Albright Ain’t the Apple of their Eyes At the Federal Circuit

Albright Slap Down: “Austin remains the more convenient forum…the district court’s decision amounts to a clear abuse of discretion.

Albright May Be Getting Fed. Circ.’s Message On Venue

Update; Mar. 8, 2022

Judge Alan Albright, who was repeatedly chastised by the Federal Circuit in 2020 and 2021 over his refusal to transfer patent cases out of his Texas courtroom, has not faced a reprimand from the appeals court for more than three months. However, this lull doesn’t mean lawyers are done keeping a close eye on his court sayeth Law360.

Update; Mar. 10, 2022 (Don’t speak too soon…)

Albright Chided For Using Car Dealerships To Justify Venue

The location of independent car dealerships can’t be used to justify venue in patent litigation against auto manufacturers, the Federal Circuit said Wednesday, overriding U.S. District Judge Alan Albright for the first time in months.


OCT 1, 2021 | REPUBLISHED BY LIT: OCT 4, 2021

Before DYK, PROST, and HUGHES, Circuit Judges.


Apple Inc. petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to vacate its order transferring this case from the Austin Division of the Western District of Texas to the Waco Division and to stay that order pending disposition of the petition. Because the district court cites no statutory authority for its re-transfer and because Austin remains the more convenient forum, we grant the petition and direct the district court to vacate its order.


Fintiv, Inc. filed the underlying patent-infringement suit against Apple in the Waco Division of the Western District of Texas in December 2018. In September 2019, the district court judge granted-in-part Apple’s motion to transfer venue of the action to the Austin Division of the Western District of Texas, where the same judge continued to preside over the case. Although the district court denied transfer to Apple’s preferred destination in Northern California, the district court agreed with Apple that the Austin Division of the Western District of Texas was, at the time, clearly more convenient for trial.

The district court scheduled the trial to begin in Austin on October 4, 2021. But on September 8, 2021, one month before trial, the district court ordered the case re-transferred back to Waco. In its order, the district court explained only that “[j]ury trials in the Austin courthouse ha[ve] largely been suspended” due to the COVID-19 pandemic, that “it remains uncertain whether the Austin courthouse will be open for jury trial in the foreseeable fu- ture,” and that such intervening events “frustrated the original purpose of transferring this action to the Austin Division.” Order at 1–

2, Fintiv, Inc. v. Apple Inc., 6:21-cv- 00926-ADA (W.D. Tex. Sept. 8, 2021), ECF No. 386 (“Re-Transfer Order”).

Apple now petitions this court for a writ of mandamus directing the district court to vacate the re-transfer order and to stay that order pending disposition of the petition. Fintiv opposes both requests. We have jurisdiction under 28 U.S.C. §§ 1651 and 1295.


Our review here is governed by Fifth Circuit law. See In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). When a writ of mandamus is sought, we review a decision to transfer for a clear abuse of discretion. See In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc).

In In re Intel Corp., we explained that the only author- ity for an intra-district re-transfer without full consent of the parties is 28 U.S.C. § 1404(a). 841 F. App’x 192, 193–95 (Fed. Cir. 2020). Under § 1404(a), a district court “should not re-transfer except under the most impelling and unu- sual circumstances,” such as unanticipated “post-transfer events [that] frustrate the original purpose for transfer.” In re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983) (cleaned up). Further, a re-transfer analysis should be “based on the traditional factors bearing on a § 1404(a) analysis” and “should take into account the reasons of con- venience that caused the earlier transfer.”

Intel, 841 F. App’x at 195.

Here, the district court inexplicably failed to perform that analysis, giving “the parties and reviewing courts no way of understanding how the court reached its conclusion and providing no assurance that it was the result of conscientious legal analysis.”

In re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 291 (5th Cir. 2015).

The district court articulated no authority in its order to re-transfer, explaining only that “it remains uncertain whether the Austin courthouse will be open for jury trial in the foreseeable future.”

Re-Transfer Order at 1.

Not only is this explanation minimal, but it is also not supported by any analysis of the traditional § 1404(a) factors.

Nor is there any indication that the Austin courthouse 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.”


Fintiv suggests that its position statement before the district court sufficiently explains the district court’s ruling.

But “[a]n explanation must be generated by the court, not inferred by the appellate court from the submissions of the parties,” and a “

[c]ontrary rule would require us to guess the basis for the decision without guidance, essentially reducing us to the role of replacing the district court’s discretion with our own.”

Lloyd’s Reg., 780 F.3d at 290–91.

To be sure, the district court gestures to our decision in Intel by stating that “the intervening COVID-19 pandemic has frustrated the original purpose of transferring this action to the Austin Division.”

Re-Transfer Order at 1–2.

But the purpose of transfer under § 1404(a) is “for the convenience of parties and witnesses” and the “interest of justice.”

28 U.S.C. § 1404(a).

In originally granting Apple’s motion to transfer venue to the Austin Division, the district court performed the required analysis and found that Austin was clearly the more convenient venue. Order Denying Defendant Apple’s Motion to Transfer Venue at 4–17, Fintiv, Inc. v. Apple , 6:21-cv-00926-ADA (W.D. Tex. Sept. 10, 2019), ECF No. 73.

It relied in large part 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.

Id. at 17.

We approved this reasoning in our order denying Apple’s previous peti- tion for mandamus seeking transfer to the Northern District of California.

See In re Apple Inc., No. 2020-104 (Fed. Cir. Dec. 20, 2019).

On the record before us, it is far from clear that the intervening COVID-19 pandemic has frustrated any of the original purposes for transferring this case from Waco to Austin under § 1404(a). Relevant witnesses and evidence remain in Austin, and the parties continue to maintain their presences there.

Pet. Opening Br. at 20.

Furthermore, the parties have prepared for trial in Austin. And Apple’s employee witnesses will all be traveling from California, from which there are no direct flights to Waco.

Pet. Reply at 9.

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.

Under these circumstances, where the district court has failed to perform the requisite § 1404(a) analysis and where Austin remains the more convenient forum, the district court’s decision to re-transfer this case back to the Waco Division amounts to a clear abuse of discretion.



1 The petition for a writ of mandamus is granted. The district court’s September 8, 2021 order re-transferring the trial from Austin to Waco is vacated and we remand with instructions that this action shall proceed in the Austin Division of the United States District Court for the Western District of Texas.

2 The motion to stay is denied as moot.



October 1, 2021 Date



/s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court



BDF’s Complaint against the Kings On Behalf of US Bank in Judge Albright’s Chambers On Silent Mode

The last entry on the docket was filed July 5, 2021. There has been no movement as confirmed by downloading docket today Feb 10, 2022.

Will McGlinchey Stafford Receive a Phone Call from Judge Albright’s Chambers to File for Attorney Fees?

The former magistrate judge knows the rules, but he decided to break the law and phone lawyers to remind them to file an affidavit for fees.

Unpublished Foreclosure Opinion – What About Cronenwett’s $20k Post Judgment Attorney Fees Award Fifth Circuit?

It appears the homeowners’ attorney, an IP attorney, did not contest the $20k in attorney fees by Mark Cronenwett of Mackie Wolf on appeal.

TIMOTHY B. DYK was appointed by President William J. Clinton in 2000. Prior to his appointment, Judge Dyk was Partner and Chair, Issues and Appeals Practice Area, at Jones, Day, Reavis & Pogue from 1990 to 2000.

He was Adjunct Professor at Yale Law School from 1986 to 1987 and 1989, at the University of Virginia Law School in 1984 and 1985, and from 1987 to 1988, and at the Georgetown University Law Center in 1983, 1986, 1989 and 1991.

Judge Dyk was Associate and Partner, Wilmer Cutler & Pickering from 1964 to 1990. From 1963 to 1964, Judge Dyk served as Special Assistant to Assistant Attorney General Louis F. Oberdorfer. He also served as Law Clerk to Chief Justice Warren from 1962 to 1963, and to Justices Reed and Burton (retired) from 1961 to 1962.

Judge Dyk received an A.B. from Harvard College in 1958 and an LL.B. from Harvard Law School in 1961. He was First President of the Edward Coke Appellate Inn of Court from 2000 to 2001 and President of the Giles Sutherland Rich Inn of Court from 2006 to 2007.

He was the recipient of the 2012 American Inns of Court Professionalism Award for the Federal Circuit and the 2016 Honorable William C. Conner Inn of Court Excellence Award. Judge Dyk is the co-author of the Chapter on Patents in the Fourth Edition of the treatise, Business and Commercial Litigation in Federal Courts.

He is a member of The American Law Institute.

SHARON PROST was appointed by President George W. Bush in 2001. She served as Chief Judge from 2014 to 2021. Prior to her appointment, Judge Prost served as Minority Chief Counsel, Deputy Chief Counsel, and Chief Counsel of the Committee on the Judiciary, United States Senate from 1993 to 2001.

She also served as Chief Labor Counsel (Minority), Senate Committee on Labor and Human Resources from 1989 to 1993.

She was Assistant Solicitor, Associate Solicitor, and Acting Solicitor of the National Labor Relations Board from 1984 to 1989.

She was an Attorney at the Internal Revenue Service from 1983 to 1984, and Field Attorney at the Federal Labor Relations Authority from 1980 to 1983.

Judge Prost also served as Labor Relations Specialist/Auditor at the United States General Accounting Office from 1976 to 1980 and Labor Relations Specialist at the United States Civil Service Commission from 1973 to 1976.

Judge Prost received a B.S. from Cornell University in 1973, an M.B.A. from George Washington University in 1975, a J.D. from the Washington College of Law, American University in 1979, and an LL.M. from George Washington University School of Law in 1984.

TODD M. HUGHES was appointed to the United States Court of Appeals for the Federal Circuit by President Barack H. Obama in 2013, confirmed by the Senate on September 24, 2013 and assumed the duties of his office on September 30, 2013.

Judge Hughes served as Deputy Director of the Commercial Litigation Branch of the Civil Division of the United States Department of Justice from 2007 to 2013. He was the Assistant Director in that office from 1999 to 2007 and a Trial Attorney from 1994 to 1999.

From 1992 to 1994, Judge Hughes served as a Law Clerk to Circuit Judge Robert Krupansky of the United States Court of Appeals for the Sixth Circuit.

He was an Adjunct Lecturer in Law at Cleveland-Marshall College of Law during the Spring, 1994 semester.

Judge Hughes received a J.D. from Duke Law School in 1992, an M.A. from Duke University in 1992, and an A.B. from Harvard College in 1989.

Former Magistrate, Now Texas Federal Judge Albright Ain’t the Apple of their Eyes At the Federal Circuit
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