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Net Navigation Systems, LLC v. Extreme Networks, Inc., 4:14-CV-254 (10/27/14)
Judge: Amos Mazzant
Holding: Motion to Transfer Venue Denied
After reviewing the applicable factors in this patent case, Judge Mazzant concluded that the defendant had not met its burden to demonstrate that the Northern District of California was a "clearly more convenient" forum than the Eastern District of Texas. The factors that favored transfer included the local interest of the Northern District of California as the "home" of the defendant; the access to sources of proof that are generally available there or that can be made available there; and the availability of compulsory process of witnesses. "Heavily outweighing these factors," the Court observed, "is the fact that this Court has extensive experience with these same patents, including a Markman hearing and claim construction order, and it is much more efficient to conduct the two co-pending trials of these patents-in-suit in one forum." The Court also noted that the Eastern District of Texas could bring the case to trial faster than the Northern District of California, and that the remaining factors were neutral.
Unfortunately this panel fell so soon after last week's bench bar that I was not able to get a post up on it ahead of time, but I was fortunate to be able to pinch-hit moderating a distinguished panel yesterday morning in Houston on the subject of federal courts and the Federal Rules of Civil Procedure at the State Bar's 2014 Advanced Civil Trial course.
The panelists included U.S. District Judge Lee Rosenthal of the Southern District of Texas – Houston Division, Associate Dean Lonny Hoffman of the University of Houston Law Center and distinguished practitioners Richard W. Mithoff, Jr. and Murray J. Fogler, both of Houston.
We spent most of our time talking about the upcoming amendments to the Federal Rules of Procedure (even though they will not take effect until December 1, 2015) which deal with discovery and document preservation, but also covered other topics including pleadings, and technology for hearings. I hope to get a summary of the current state of the proposals up soon, but in the meantime, here's a quick summary of the salient points:
Lonny Hoffman provided an outstanding summary of the rule proposals for attendees, which was followed by valuable insights from Judge Rosenthal, who, as a former chair of both the advisory committee on the FRCPs and the standing committee which oversees all of the federal rules, is a veteran of the rulemaking process. Richard, Murray and I sounded the requisite notes of alarm for the practicing bar for any rule changes, since of course everything was better back in the old days (am I getting old, or what?).
Judge Rosenthal also informed us on the new Fifth Circuit pattern jury instructions which are hot off the presses, metaphorically speaking, as well as the new employment law pattern discovery requests which are available for use nationwide. (I don't have a link for the latter, so if any employment lawyers reading this know where they are located, please shoot me an email and I will post it).
It was a very enjoyable panel, and I really appreciated the opportunity to work with these distinguished members of the bench and bar. Nonetheless, after three trips to Dallas and one trip to Houston in the last eight days (some of which were distinctly happier than others), I am very glad to be back in the office and relatively undisturbed for a few days to catch up.
The 2014 Bench/Bar kicks off tomorrow morning in Sherman with the renaming of the Sherman courthouse for former U.S. District Judge Paul Brown at 10 am.
The activities (well, aside from golf) continue with CLE at the hotel in Plano at 2pm with panels on not lying to judges (more or less), the past, present and future of the ED Tex, a high Octane panel on patent issues and the Fifth Circuit's new hyperlink program.
Tomorrow evening continues with a reception, opening remarks by Chief Judge Davis, and dinner, which features Dallas law school deans from UNT and SMU, presentation of the Hannah award, and remarks on professionalism by Baylor President Kenneth Starr. After that we have a keynote presentation by Fifth Circuit Chief Judge Carl Stewart, also on professionalism (but less likely to involve discussion of Baylor football), followed by dessert and dancing with ED Tex veteran (in both the courthouse and the dance floor, as we now know) Emerald City (President & Mrs. Bush are not expected to accompany the band).
Thursday morning has panels on patent litigation statistics, practice in the ED Tex, yet more practice on the ED Tex, how to screw up (or not) at trial, and the Mark Cuban trial. That brings us to lunch.
Thursday afternoon is a presentation on legal writing in the cell phone age, and a panel on legal writing in a paperless world. Following a break, we get into how to invalidate patents, and a panel with Federal Circuit Judge Kimberly Moore and some of her former law clerks on practice in the Federal Circuit.
Thursday afternoon is also the panel I have been working on Circuit Judges and District Judges: What Can They Learn From One Another? What Can Lawyers Learn From Listening? with Chief Circuit Judge Sharon Prost and Judge Timothy Dyk from the Federal Circuit, Chief Judge Leonard Davis and Judge Rodney Gilstrap from the ED Tex, Judge Barbara Lynn from the ND Tex (not the legendary blues guitarist, singer, and songwriter from Beaumont, just in case you were wondering), and Judge Sue Robinson from the District of Delaware, with Jennifer Ainsworth, Glenn Thames and I as interactive facilitators. Not often you get six judges like this on the same panel, so I look forward to that one.
Thursday evening has another reception, dinner on your own, and then Reflections of ED Texas/ND Texas 2014 Patent Mock Trial Presented at China University, Beijing with Comparative Ethics. And After Dinner Drinks by the ND and ED Texas lawyers and judges who participated in the Presidential Suite. Discussions are set to conclude at 10:30. Drinking is expected to continue after then.
Friday morning, if we can stagger out of our respective hotel rooms after two nights of conversing about the latest trends in federal court litigation till all hours, we will be greeted with a panel on Hatch-Waxman Behind the Pine Curtain (which had damn well better be accompanied by some choice pharmaceuticals if they want anyone awake), in-house counsel wish lists, patent case management, and patent litigation management (again). Again, the first is an academic presentation, then the second has four judges who might know something about managing a patent docket: Judges Davis and Gilstrap from the Eastern District and Judges Leonard Stark and Sue Robinson from Delaware.
After a buffet lunch, attendees with be treated to a panel on current proceedings at the Board of Patent Appeals and Interferences, Jurors Gone Wild (that's the next panel which is about juries, not the name of the BPAI panel), and then a panel of actual ED Tex patent case jurors. Whether they will, too, go wild is anyone's guess.
It's going to be an enjoyable few days in Plano - hope to see many of you there.
A Marshall jury in Judge Rodney Gilstrap's court rendered a verdict today in the highly – publicized qui tam False Claims Act action that was tried last week involving highway rail end caps. The jury found that defendants Trinity Industries, Inc. and Trinity Highway Products, LLC knowingly made, used, or cause to be made or used, a false record or statement material to a false or fraudulent claim, and awarded $175 million in damages.
Back in the summer of 2012, U.S. District Judge Rodney Gilstrap tried SSL v. Citrix, which was significant for several reasons. As I posted at the time. it was:
(1) Judge Gilstrap's first patent trial;
(2) the first trial in the historic 1901 county courthouse district courtroom in almost half a century (Judge Bryson was using his courtroom across the street), and
(3) the first application by a district court of the Federal Circuit opinion in Bard Peripheral v. W.L.Gore (Fed. Cir. 2012) (on rehearing).
As readers know, Bard was the case that held that the objective prong of the test for willful patent infringement is a separate question of law, and that henceforth it would be the trial court's duty to determine whether the defendant's actions were objectively reckless. The Bard opinion came out several days into the trial, forcing the Court (working out of a makeshift courtroom across the street from his chambers while conducting his first patent trial) and the parties to figure out how to apply it. Pursuant to Bard, Judge Gilstrap made the determination that the defendant's actions were in fact (sorry, in law) objectively reckless, and then submitted the issue of willfulness to the jury under the new Bard framework for the jury to find if the subjective prong was met.
In SSL, there were two patents asserted. The jury found one patent - unfortunately for the plaintiff the one with the lion's share of the damages sought - not infringed, and that only one of the three claims on a second patent was infringed. It also found that all three of the second patent's claims were also contributorily and induced-edly (not a word, but it needs to be) infringed. The jury found that the infringement of the second claim was willful, but of course only looking at the subjective prong of the test. Finally, the jury assessed damages at $10 million. For comparison purposes, the plaintiff was seeking $63 million in closing.
The plaintiff then sought enhanced damages based on the willfulness finding. The Court determined that there was no copying, but that Citrix' "eight-year long failure to investigate the '011 patent" supported enhancement. He also found that it wasn't a "close case", the length of infringement was lengthy, and Citrix' size and financial condition weighed in favor of enhancement (these are all factors in the enhancement analysis, incidentally, not just random observations). Judge Gilstrap accordingly determined that trebling the $10 million verdict was not appropriate, but did enhance damages $5 million for a total of $15 million.
However, since the jury agreed with Citrix that the '796 patent was not infringed, and with SSL that the '011 was, Judge Gilstrap determined that neither side was the "prevailing party" in this case and held that each side should bear its own costs.
On appeal the defendant claimed the the jury got it wrong in finding infringement and willful infringement on one patent, as well as in finding the patent not invalid. It also stared down the throat of a gift horse by complaining that the court should have excluded agreements its expert actually used to calculate a lower royalty rate than the plaintiff argued for - this in a case that was a substantial defense win on damages. Speaking of a defense win on damages, the plaintiff also appealed, claiming that the jury got it wrong for not finding infringement on the patent that had the money, and that Judge Gilstrap got it wrong by making an incorrect claim construction (again, on the patent that had the money) and by not finding it the "prevailing party" for purposes of court costs. (I am misstating the analysis slightly since the appeal is actually not of what the jury did, but of the district court's decision to deny the JMOL asking to set it aside, but you get the idea).
Yesterday the Federal Circuit ruled on the cross-appeals. Writing for a panel consisting of herself, Judge Lourie and Judge Linn, Judge Kathleen O'Malley affirmed Judge Gilstrap's rulings across the board, essentially, including the willfulness finding (both the court's and the jury's) and the enhanced damages in the amount Judge Gilstrap had determined, as well as the claims constructions, exclusion of nonexpert testimony on invalidity, admission of certain agreements (not licenses, but it agreed with Judge Gilstrap that they were close enough for use) on the issue of damages, calculation of prejudgment interest, and finally, exclusion of evidence of ongoing reexam proceedings. On the last point, it appears from the opinion that the claims stood rejected at the time of trial but the PTO later found them not invalid, a factor which the panel found further supported the court's finding that the objective prong of willful infringment had been met.
The panel did, however, find that Judge Gilstrap should have held the plaintiff to be the prevailing party, and considered the relative success when it came to the decision of what fees and costs to award, not whether a party was "prevailing" in the first place. (This morning Judge Gilstrap entered an order in the case setting a briefing schedule on the fees/costs issue).
I have heard some commentators argue that Federal Circuit opinions are sometimes unclear and difficult to draw clear guidance from for use in future cases. They won't be saying that about this one. It reads almost like a JMOL, and you know how I feel about those. So put this one away for the subjects above - it is a good reference on a number of issues that recur at trial in patent cases. Perhaps that isn't coincidental, since Judge O'Malley was a district judge for 16 years before joining the Federal Circuit.
Speaking of district and appellate judges, I would call to readers' attention that both Judge O'Malley and Judge Gilstrap will be on a panel on trial & appellate court relations next week at the Eastern District bench/bar, Circuit Judges and District Judges: What Can They Learn From One Another? What Can Lawyers Learn From Listening? along with Federal Circuit Chief Judge Sharon Prost, Eastern District Chief Judge Leonard Davis, and district judges Barbara Lynn of the Northern District of Texas and Sue Robinson of the District of Delaware, (both of whom have heard the odd patent case or two, I understand). If you aren't registered, now would be a good time...
Mount Spelman & Fingerman, P.C. v. GeoTag, Inc., 2:14cv013 (10/2/14)
Judge: Rodney Gilstrap
Holding: GeoTag's Motion for a Preliminary Injunction Denied
As readers are aware, GeoTag filed multiple suits against over 400 defendants at various locations within the United States, including over 350 such defendants in Texas federal courts alone. "As these cases proceeded, a litany of settlements and dismissals resulted," Judge Gilstrap observed.
But that's not what this case - or order - is about. As weblog readers know from my prior posts, Geotag changed its attorneys approximately once a year (most often in August) from the institution of the litigation in 2010 through 2014. The lineup for the 2012 – 2013 season included California firm Mount Spelman & Fingerman, P.C., which represented Geotag from September 21, 2012 until it was terminated on November 8, 2013.
MSF instituted this litigation in Judge Gilstrap's court, contending that it was owed substantial sums as attorneys fees under the fee agreement, and that the agreement gives it a contractual lien over all amounts recovered by Geotag as a result of enforcing the patent in suit in all courts around the country. To enforce its asserted lien MSF has sent letters to entities sued by Geotag claiming that it has a lien covering all settlement proceeds and directing settling entities to pay the settlement amounts into an escrow account that cannot be touched by Geotag until the dispute is resolved by the Court.
As a result, GeoTag filed a motion seeking a preliminary injunction to prevent MSF from making such demands. It argued (one) the lien is unethical under the Texas disciplinary rules of professional conduct; and (two) that the lien should cover only existing settlements as of the time of MSF's discharge – and not the global lien that it now claims.
Judge Gilstrap concluded that a contractual charging lien to protect a contingency fee was not unethical under Texas disciplinary rules. He further concluded that since ambiguous terms in the fee contract must be resolved in favor of the client, the fact that some of the relevant provisions were ambiguous required him to construe the terms in favor of Geotag. Accordingly, the court concluded that MSF's lien covers only those disputes where resolution, either by executed settlement agreement, final judgment or dismissal with prejudice, was consummated before its date of termination – November 8, 2013. With respect to disputes resolved or consummated after that date the Court found that while MSF did hold an unsecured breach of contract action, to the extent it can prove damages, against Geotag, it did not have a lien for those disputes.
The Court further held that the lien was only enforceable on a case-by-case basis and not collectively "that is to say, MSF may only properly seek to enforce its lien in each individual case where resolution of the case was consummated before November 8, 2013, and there only to the extent of the specified contingent fee earned in that particular case." In other words, MSF could only claim the contingency fee to which it would be entitled from each individual settlement, i.e. it couldn't collect the entire settlement up to its overall fee that was due. Again, this was a result of the Court's resolving ambiguities in the provision against the lawyer drafter of "what must be viewed to be an excessively broad and ambiguous lien provision."
The same rule required MSF to accept Geotag's allocation of "costs" to the specific, individual cases when calculating the amount of its lien covers, because it was unclear what proportion of accrued costs should be allocated to each individual case.
The court went on to specifically hold that MSF did not hold a lien over funds obtained from the Delaware litigation or the Yellowpages.com litigation for the same reason.
Finding that its ruling "substantially mitigated" any harm to Geotag as a result of MSF's actions, the Court denied the request for preliminary injunction.
Hillman v. City of McKinney, NO. 4:11-CV-150 (10/2/14)
Judge: Amos Mazzant
Holding: Defendants Motion for Summary Judgment Granted in Part
Plaintiffs were owners of a family entertainment business located in the city of McKinney, Texas. In February 2009, the bank foreclosed on the real property and building that housed the business. This lawsuit arose out of a dispute between the business owners and the building owners over their access to the building while the building in the process of being sold to a new owner.
After parsing through the applicable facts and relevant legal standards, Judge Mazzant found that the plaintiffs' claims for loss of goodwill and loss of reputation damages must be dismissed, but that some of their claims against the new purchaser of the building (and other parties related to the building and its change of ownership) did survive.
Georgetown Rail Equipment Company v. Holland LP, 6:13cv366 (10/7/14)
Judge: John Love
Holding: Motion for Leave to Serve Amended Contentions Granted
The defendant asserted that the proposed contentions were deficient under the local rules, and in any event there was not sufficient good cause to permit the amendment.
With respect to the first argument, Judge Love rejected the contention that infringement contentions were intended to require party to set forth a prima facie case of infringement and evidence to support its case, and noted that in any event, the complaint was not connected to the proposed amendment.
With respect to the good cause analysis, the Court noted that the defendant had refused to produce source code, and was subsequently ordered to produce of the code, and the amendment followed that code review. It also did not agree that the contentions were introducing a new theory or product into the contentions, but rather were refining the scope of the accused product. The Court found that there was insufficient evidence to indicate that there would be unfair prejudice as a result of the amendment, and deferred the issue of whether a continuance was necessary pending a specific request by the defendant to remedy a problem caused by the amended infringement contentions.
It's a victory Monday on the weblog celebrating the Cowboys' big win yesterday up in Seattle with my Staubach throwback. It's also a very rainy holiday Monday in Marshall – unless, of course you're across the street picking a jury in Judge Gilstrap's court in the Trinity industries cap-end case, in which case it is still rainy, but it's not exactly a holiday.
But it's a good opportunity to catch up on work, as well as looking at some recent opinions that are worth noting, so keep an eye out and I will try to get a few up later today.
Hodges v. Wells Fargo Bank, N.A., NO. 4:12-CV-441 (10/3/14)
Judge: Amos Mazzant
Holding: Defendants Motion for Summary Judgment Granted
Plaintiffs challenged the defendant's foreclosure of their property, and asserted several related causes of action. The court found that summary judgment was appropriate as to all of the plaintiffs claims.
DietGoal v. Chipotle Mexican Grill, 2:12cv764 (10/3/14)
Judge: William Bryson
Holding: Motion for Summary Judgment of Invalidity Under Section 101 Granted
My backup title was "You're No Good, You're No Good, You're No Good, Baby You're No Good," which gives me an excuse to post a '70's Linda Ronstadt picture.
The Court previously stayed further proceedings pending the briefing and resolution of the motions for summary judgment. One of the motions for summary judgment, filed on behalf of all of the remaining defendants in this case was a motion for summary judgment that the '516 patent was invalid under 35 U.S.C. § 101 because it is directed to unpatentable subject matter (stop me if you've heard this before).
Judge Bryson granted that motion and entered summary judgment in favor of the defendants, but with the interesting twist that his ruling was based on the collateral estoppel effect of the decision of another district court. Sort of a judicial play-action pass, since after his essay on the subject in Loyalty you'd have expected the Court to opt for a run up the middle on this subject. But no - opted for the easy toss to Dez in the corner of the end zone.
The patent litigation corner of the Internet is (appropriately) abuzz today with Lex Machina's recent report that the number of new patent cases filed last month was down 40% from the total the same month the year before, which it suggested was as a result of the impact of the U.S. Supreme Court's recent ruling in Alice Corp.. (Remember back all those months weeks ago when the headlines were trumpeting that patent filings were at record highs?)
A closer look at the data indicated to me potentially a more nuanced finding, in two ways.
First, as the report indicated, filings reached a record high of 675 new cases in April 2014. But as commentators have noted, that spike - which by the way was enormous locally until you look closer and note that the entire increase was attributable to filings by I believe two attorneys on behalf of four plaintiffs - was potentially the result of suggested amendments to a Senate patent reform bill which would have established new fee shifting rules and which would have backdated the revisions to April 24, I believe it was. The tactic of filing essentially every case in this office to avoid an anticipated negative legislative action is not new – we saw the same thing in 2011 shortly before the AIA went into effect, and Texas lawyer sees it every other August 31, as the laws passed by the most recent legislature go into effect on September 1.
But as I have noted before, the effect of this orgy of filings is to damp down filings for the next several months since the pipeline of new cases was at least in part emptied in April. Thus the reduced rate of filings over the subsequent months may be explainable in part to this effect.
Does it explain it all? Well, filings through September last year were 4,548, and filings through September this year are 3,887. So filings are actually down for the year now - they are at 85% of last year's levels - but the month-to month figure of 40% down in September may be exaggerating the trend a bit much. As the chart below that adds the 2011 and 2012 numbers shows, the filings vary widely between months - the September filings are always off about 20% one way or the other from the prior year, so perhaps the change is not going to be as dramatic as month to month statistics indicate.
Second, although the commentators focus on the Court's decision in Alice, I have been studying the past year's opinions by both patent courts (I think the Supreme Court now fits that definition) and there are other opinions that justify a pause before filing new suits, and which I believe represent a more dramatic and unexpected change in the law than Alice, taking into account the preceding Federal Circuit caselaw on the subject.
Of course Octane Fitness / Highsmith counsels some caution before filing new cases. And as I have posted recently, indefiniteness is a brave new world post-Nautilus, so that's an additional analysis that new filings need to undergo, and then there's that VirnetX opinion on damages from last month that I would think would send a lot of lawyers back to the drawing board (if not to their neighborhood bar) to try to figure out what damages models will still work. So a delay in filings at least is to be expected, and that alone translates into a depressed number for several months..
Put it this way. If you had a case otherwise ready to file under the January 2014 standards, would you file it without going back and checking it not just for Alice problems, but also potential indefiniteness challenges, risks that your infringement allegations are "exceptional" (and not in a good way) as well as whether you had Alice issues? Even if it took a couple or three months?
I didn't think so.
I am not saying that the commentators are not right and that Alice (perhaps in combination with the other opinions I have noted) won't have a major effect on patent filings the rest of the year. I just think that it will take another quarter before I think we know that for sure. Remember all the commentary about how filings dropped off after the AIA was enacted in 2011 - and a few months later they came back on steroids? Or earlier this year when the filings were setting record levels?
This is proof that procrastination pays - I still haven't finished analyzing Lex Machina's analysis on that trend, and now it's obsolete.
I will be moderating a panel, Focus Groups and Mock Trials: Best Practices in Patent Litigation at the upcoming Institute for Law and Technology's 52nd Annual Conference on Intellectual Property Law at the Center for American and International Law in Plano, Texas on November 10-11, 2014.
The panel will be at 10:45 am on the second morning of the seminar, and I will be joined by Eastern District practitioners Jennifer Haltom Doan of Texarkana and
Wesley Hill of Tyler, who I can absolutely promise are going to have some great advice for attendees on what works and what doesn't with respect to the oft-used focus groups and mock trials based on their experience working with faux and real jurors trying patent cases behind the Pine Curtain. (I may even have some myself).
The conference is shaping up to be a good one, with separate tracks on patent prosecution and patent litigation, as well as a conference dinner featuring Former Chief Judge Randall Rader of the Federal Circuit. The conference brochure can be downloaded here.
For many Texas lawyers, desks and offices take on a significant importance in our lives and careers. Often these spaces become a representation of our professional identities, home to our creative idiosyncrasies, and landing pad for our often-challenging workload.
The State Bar of Texas is sponsoring a social media project Texas Law Desk asking Texas lawyers what does your space say about you and what tools do you find indispensable to getting the job done?
Share your workspace photos with the State Bar of Texas (@statebaroftexas) viaTwitter, Facebook, and Instagram using the hashtag #txlawdesk. Alternately, you can email your photo to email@example.com. Be sure to note your five favorite items featured in the photo - maybe a tablet that helps you manage workflow, a lamp that puts off the perfect glow, a comfortable chair or stand-up desk, a to-do list app on your smartphone, or something similar. For inspiration check out this list of 40 Inspiring Workspaces of the Famously Creative and Lifehacker's series How I Work.
Particularly interesting, impressive, or messy desks will be featured on the Texas Bar Blog.
My Texas Law Desk
As shown above, my "desk" is actually the most rarely used part of my work environment. I get most of my work done on either my editing standup desk or my computer monitor standup desk that sits on my credenza. My favorite items on my desk(s) from left to right are:
1. Stand-up desk for editing
I really enjoy doing my editing on a standup desk. Mine is a old (George III) mahogany architect's table with a pull–out felt writing surface with storage underneath, and locking cubbies for pen, ink and stationery.
2. Dictation headset
I use Dragon Naturally Speaking for almost all my typing, and have a Logitech headset I use for that and for conference calls. This new one (an H800) I particularly like.
3. iPad Air
I keep my iPad handy, usually with the Remember The Milk (RTM) to-do app open, since that is how I organize all of my work. But I also do most of my case and article reading on the iPad so that I can save the highlighted versions of documents using iAnnotate. I mainline Evernote and Google Apps most of the day, but normally on the desktop monitors.
4. O'Connor's Federal Rules
Well of course - it has the rules, (well-written) commentaries and the Texas federal courts' local rules in the back. I actually keep all of my O'Connor's books on the Thomas Jefferson revolving book stand (unloaded version shown at right), but it doesn't revolve very often, since as you can tell it has a Lenovo portable monitor on it, which I use as a third monitor for my computer. Because, you know, the primary monitors just aren't big enough.
5a.Varidesk computer stand-up desk
Varidesk makes single and double monitor versions, and I have the latter supporting a wireless Logitech keyboard and mouse and Dell 24" and 30" monitors. It's easy to raise and lower and I usually lower it at night and raise it in the morning. No, I don't know why either.
5b. ScanSnap
Since we operate an office that is virtually paperless, I have to have a easy way of getting paper into the computer, and I have found my Fujitsu ScanSnap to be the best for that. As I said, I use Evernote a lot, but do not have the Evernote version of the scanner. Yet. I'm waiting for this one to break, but not even knocking it off the credenza (accidentally, of course) has fazed it. So I can't scan from my portable device to it, but I haven't figured out why I would ever need to.
Loren Steffy has an article on the local patent docket in Texas Monthly this month that readers might enjoy.
Some good quotes, although I would qualify my quote that plaintiffs win about half the cases in Marshall to note that that's a long-term win rate - at present they only win about a quarter to a third. (I do like my "trash cases" comment though).
(Exceedingly original photograph of the Sam B. Hall, Jr. courthouse in Marshall from Sam B. Hall, Sr.'s courthouse across the street by photographer ... wait for it ... O. Rufus Lovett. Only Texas Monthly).
Sellers v. Wood County, 2:12-CV-293 (9/29/14)
Judge: Roy Payne
Holding: Rulings on Posttrial Motions
The jury in this case found that the plaintiff had failed to prove her claims against the three individual defendants, and that they were entitled to qualified immunity, but that she did prove both her §1983 claim and her Texas Whistleblowers Act claim against her former employer, Wood County. The Defendant filed a JMOL and the plaintiff sought an award of attorney's fees and court costs (as did the prevailing defendants).
Motion for Judgment as a Matter of Law
With respect to the JMOL, Judge Payne concluded that there was sufficient evidence in the record from which the jury could have reasonably concluded that Wood County stigmatized the plaintiff by publishing the false statement that she was under a criminal investigation by the Texas Rangers, and that plaintiff was damaged in her efforts to secure further employment. There was also evidence to support the jury's finding that the statement was published to other agencies and that plaintiff was not afforded a meaningful hearing despite her request through her attorney, as well as evidence from which the jury could reasonably conclude that the Sheriff personally participated in and approved the actions at issue. There was also sufficient evidence supporting the plaintiff's Texas Whistleblowers Act claim.
Motion for Attorney's Fees
The Court found it clear that the plaintiff was the prevailing party, and thus entitled to attorneys fees under §1988, but that fees should not be awarded for either the individual claims which failed, or under the Whistleblower's Act. But it did not accept the defendant's proposal that the Court just apply a 75% haircut to the fee application as a result. Instead, the Court reduced the number of hours claimed by one of the two attorneys who represented the plaintiff from 602.25 to 400 due to issues relating to the reconstruction of the time devoted to the case. It then reduced the fee by 10% due to unneeded duplication between the two attorneys, leading to an fee award of $76,430.25. (Without pulling out a calculator, this looks to me like about a third reduction from the original application).
Court Costs
Plaintiff sought taxation of $33,268.51 in costs, which the court reduced only by the cost of private process servers, which totaled $6,630.58.
Attorney Fees for Individual Defendants
Finally, the three defendants which were found by the jury to be entitled to qualified immunity and thus not liable for damages sought an award of fees under §1988."[U]nlike a prevailing plaintiff," Judge Payne wrote, "a prevailing defendant in a civil rights case can only recover attorneys fees if the court finds that the plaintiff's case against it was'frivolous, unreasonable, or groundless, or that the plaintiff continue to litigate after it became clearly so.'" In this case the Court found that the fact that the jury decided the factual questions underlying the qualified immunity defense in favor of the individual defendants did not mean that the claims were frivolous, and accordingly denied the motion. The Court also denied the three individual defendants' bill of costs, noting that it appeared to be seeking all of the taxable costs of all of the defendants, including Wood County, and did not establish that any were not on the county's behalf.
Bradley v. PNC Bank, N.A., 4:14CV37 (9/26/14)
Judge: Don Bush
Holding: Defendants Motion to Dismiss Granted
This case arose out of the plaintiff's claims regarding a foreclosure on property by the defendant bank. Defendant sought dismissal of the plaintiff's claims of fraud, breach of contract, wrongful foreclosure and trespass on various grounds. The Court granted the motion, finding that the plaintiffs claims which accrued prior to February 2012 were dismissed for lack of standing, and any remaining claims were dismissed with prejudice for failure to state a claim.
Darling v. Director, TDCJ-CID, 4:10CV602 (9/26/14)
Judge: Ron Clark
Holding: Motion for New Trial Denied
Judge Clark concluded that the petitioner had primarily engaged in the rehashing of evidence, legal theories, or arguments. In the absence of any new arguments or evidence that could not have been raised in Petitioner's first proceeding, the Court denied the Petitioner's motion for reconsideration as he had failed to show a manifest error of law or fact in order to obtain relief under Rule 59.
For those of you that think I only come up with weird ideas when it comes to my weblog, I insist on taking at least some credit for this month's Texas Bar Journal theme, which takes advantage of the upcoming Halloween holiday to provide an issue centered around assorted creepy topics. (Digital edition here).
Ever wonder if a real estate seller is required to disclose that their house is haunted? We've got you covered. Wonder if a haunted house is unreasonably scary? Yeah, that too. Plus what every Texas lawyer should know about the European witch hunts. And for something really scary, there are three orders from the Texas Supreme Court and the Texas Court of Criminal Appeals regarding fees, business records affidavits and bar admissions rules, as well as an ethics opinion dealing with the employment of law clerks.
For those content with more mundane topics, we also have an article on how to select the right legal software for your practice. (You guessed it - that's my favorite).
Kudos to managing editor Patricia McConnico and her staff as well as board of editors chair John Browning for another great issue. (But I do get credit for not laughing out loud when the idea was brought up in my last board of editors meeting as chair).
I read an enormouly entertaining paper by Mark Lemley and Shawn Miller today, If You Can't Beat 'Em, Join 'Em? How Sitting by Designation Affects Judicial Behavior.
Several weeks ago, Lex Machina released a 75 page Patent Litigation Damages Report, which analyzes both cumulative and median damages in cases that terminated between 2000 and 2013. It has taken me a while to get through it but I found the report interesting reading.
There are a couple of observations I would make about things that you need to know in reading it.
First, as it makes clear, the report deals with awards without regard to whether the awards were later set aside on appeal, but readers need to know that that also includes awards that were later set aside by the district judge. For example, at p. 11 it identifies the 2007 TGIP v. AT&T award of $156,289,609 as the final entry in the "top 10" reasonable royalty damage awards from 2000-2013. But Judge Clark set that verdict aside barely a month after trial - see my post on why here. I do not disagree with that methodology by any means, but the practical effect is that you quickly realize when you're reading through the list of cases that most of the large cases were set aside by the Federal Circuit, and at least with respect to local verdicts, almost all were medical device or pharmaceutical cases, which involve damage models that are often stratospheric and which don't have a lot of similarity to ordinary patent damages analysis.
I was reminded when going through the charts of the difficulty I recently ran across in trying to make some sense of a bar graph of where there was one data point that was an order of magnitude larger than all the rest, and it had the effect of concealing the activity for all the other data points, since they were crammed down at the bottom of the chart. Frustrated, I finally eliminated the one large data point, and the trends among the others immediately became far more apparent. Damages awards in patent cases are sort of like that if you are looking at district court results since most of the really large awards go away on appeal, or at least (like, say VirnetX) are remanded for further proceedings on damages issues. The report accommodates this by providing information on median awards as well, so that the effect of the few large awards doesn't obscure the information that the more ordinary awards provide. It is just a little like reading about the Cowboys' 2014 season based on articles written the day after the first game, when they were blown out by San Francisco. None of it was wrong, but three games later much of it is no longer relevant. (Ask Rob Ryan).
There is a second major comment if you are reviewing the report for information on the Eastern District, and that is that due to the retirement of Judge Ward and Judge Folsom in late 2011 – early 2012, several of the damage awards that should be attributed to them were attributed to Judge Michael Schneider of Tyler because he had the cases at some later point in time, resulting in him being attributed with $2.3 billion in damages awards. Although the report does not list the origin by district or judge of the cases, the very helpful Lex Machina staff were able to identify for me the nine awards that they credited to Judge Schneider. In fact, seven of the nine were actually awards made by Judge Ward, Judge Folsom, or in one case Judge Gilstrap in a case decided last year, although Judge Schneider did have all of those cases at some point during the transition. Thus I believe Judge Schneider's total attributed number of $2.3 billion should be somewhere around $1.7 million (with an "m"), derived from two cases. And, again, over $2 billion of that number comes from three medical device/pharmaceutical cases, all three of which I believe the Federal Circuit later set aside, so the numbers for the more traditional electronics – based patent infringement cases are substantially different. So if you're trying to determine to determine trends by judge or in the more routine cases, some further analysis might be useful.
But the report is a useful reference for awards in patent cases.
Retractable Technologies, Inc. v. Becton, Dickinson and Co., 2:08cv16 (9/30/14)
Judge: Leonard Davis
Holding: Defendant's Renewed Motion for Judgment As a Matter of Law, or Alternatively, for New Trial or Remittitur Denied
On September 19, 2013, following an eight-day trial, a jury returned a verdict finding that BD attempted to monopolize the safety syringe market, and awarded $113,508,014 in antitrust damages. The jury also found that BD engaged in false advertising under the Lanham Act, but the parties did not submit a Lanham Act damages question to the jury.
Judge Davis rejected the request to set aside the jury's verdict on liability, and similarly rejected the attack on the jury's damages award, finding that the jury had sufficient evidence to conclude that the plaintiff had proven the amount of damages it was awarded.
With respect to the Lanham Act claims, the court rejected attacks based on principles of res judicata, release, and a complaint that the jury's verdict lacked evidentiary support.
Metzler v. XPO Logistics, Inc., 4:13-CV-278 (9/25/14)
Judge: Amos Mazzant
Holding: Cross Motions for Partial Summary Judgment Granted in Part
This is a case about an employment relationship that apparently went very, very wrong.
After reviewing the underlying facts in light of the applicable law, the Court dismissed the plaintiffs claims for age discrimination and retaliation and the defendant's claims for conversion and for breach of the return of property provision in the contract. In doing so, it rejected the arguments that a party could not file evidence in a reply brief, as well as the proposition that the local rules of the Northern District of Texas - as opposed to those of the Eastern District - applied in this case.
Remaining for trial were (1) the plaintiffs claims for declaratory judgment, breach of contract, invasion of privacy – intrusion on seclusion, conversion, and tortious interference with the contract remained live for trial; and (2) the defendants counterclaims for breach of contract regarding the full effects and best interests provision, the non-consultation provision, the confidentiality provision, the competitive opportunity provision, and the cooperation provision, declaratory judgment regarding termination for cause, breach of contract regarding the RSU forfeiture provision, breach of fiduciary duty, usurpation of corporate opportunity, and injunctive relief remained for trial.
To the right is a photograph of all of the trees that are going to die just to print copies of the court's charge in this case.
Robinett v. Gernale, 1:12cv489 (9/25/14)
Judge: Thad Heartfield / Zack Hawthorn
Holding: Motion to Dismiss Granted
Meanwhile, across the hall, and around the corner from Judge Crone in the Beaumont courthouse, Magistrate Judge Zack Hawthorn and District Judge Thad Hartfield resolved this civil rights lawsuit against plaintiff's jailers, whom she contended were deliberately indifferent to her serious medical needs.
Judge Hawthorn analyzed the claims made against the jailers in the motion to dismiss, and submitted a report and recommendation that the motion to dismiss be granted. Judge Heartfield reviewed the report and the recommendations and found that the Judge Hawthorn had correctly concluded that the claim against defendant Black in her official capacity was barred by the Eleventh Amendment. With respect to the claim against defendant Black in her individual capacity, he similarly agreed that defendant Black was entitled to qualified immunity because the plaintiff's allegations did not demonstrate that she acted with deliberate indifference to her serious medical needs.
While noting that the plaintiff included additional allegations against defendant Black in her objections, even when those allegations were considered, Judge Heartfield concluded that the plaintiff still failed to show that defendant Black was aware of facts indicating that the plaintiff was subject to substantial risk of serious harm. As a result, the court concluded that the allegations against defendant Black were insufficient to meet the "extremely high standard" applicable to claims based upon deliberate indifference, and thus Defendant Black was therefore entitled to qualified immunity.
Brooks v. Firestone Polymers, LLC, 1:12-CV-325 (9/24/14)
Judge: Marcia Crone
Holding: Defendant's Motions for Summary Judgment Granted in Part
This is a civil rights case in which eight plaintiffs allege that they were discriminated against on account of their race while employed at Firestone's chemical manufacturing facility in Orange, Texas. Defendant Firestone sought summary judgment on various grounds.
After reviewing the applicable law and the underlying facts, Judge Crone concluded that Firestone's motions for summary judgment would be granted in part and denied in part. Plaintiff Ruffin's 2009 Title VII and § 1981 discriminatory demotion claims, as well as Plaintiffs' Title VII and § 1981 denial of overtime claims, "survive summary judgment and may proceed to trial." However, with respect to Plaintiffs' other claims, the Court concluded that there remained no material facts in dispute, and Firestone was entitled to judgment as a matter of law.
Secure Axcess, LLC v. U.S. Bank Nat'l Assoc. et al, 6:13cv717 (9/26/14)
Judge: K. Nicole Mitchell
Holding: Motions to Transfer Venue Granted/Denied
There were originally 17 actions in this litigation, which were consolidated by the four for pretrial purposes, but with venue motions to be decided in the original cases. On Friday, Judge Mitchell issued orders in five of the member cases, granting one of the motions, and denying four. On the one that was granted, the defendant had agreed that efficiency counseled in favor of the Eastern District conducting claim construction proceedings, and accordingly Judge Mitchell held that the successful movant's case would be transferred to the Northern District of California after the issuance of the court's claim construction order.
SimpleAir v. Google, 2:11cv416 (9/30/14)
Judge: Rodney Gilstrap
Holding: Defendant's Motion for Judgment As a Matter of Law Denied
On January 18, 2014, a Marshall jury in Judge Rodney Gilstrap's court returned a verdict that the accused Google services infringed each of the asserted claims and that the asserted claims were not invalid. With respect to both infringement and invalidity, the court found that there was substantial evidence to support the jury's verdict, and accordingly denied the motion.
DataTreasury v. Fiserve, et al., 2:13cv431 (9/29/14)
Judge: Roy Payne
Holding: Defendants' Motion to Stay Litigation Pending CBM Review Granted
This is one of three cases that were filed on May 28, 2013. The court granted a stay in the other two cases pending CBM review of the patents in suit on August 14 – and by this order stayed the third case as well (it had been stayed previously on an interim basis pending the Court's ruling on this motion).
Burress v. Blake, 4:14cv35 (9/23/14)
Judge: Don Bush
Holding: Motion for Partial Judgment on the Pleadings Granted in Part
There aren't many sentences where the words "Paris" and "strip" are in the same sentence and yet we're talking about Paris, Texas (shown at left in movie poster from Paris, France. No seriously - the French Paris. They have one too).
This is a 1983 case, in which the plaintiff asserted claims against defendants arising out of an incident where she was a citizen spectator in a state district courtroom in Paris, Texas when a female Paris police officer (to aid reader comprehension I helpfully provide for reference as a recent cinematic illustration of what a female police officer in Paris looks like) took her to a restroom and strip-searched her without a warrant during a bathroom break. And people say Texas courthouses are dull places...
Defendants filed a motion for judgment on the pleadings under Twombly and Iqbal. After reviewing the underlying facts and the applicable law, Judge Bush concluded that all of the Plaintiff's claims against two of the defendants should be dismissed with prejudice for failure to state a claim, as should all of Plaintiff's official capacity claims against Paris police officer Blake, including Plaintiff's claims that Blake violated her Fifth and Fourteenth Amendment rights to be present in the courtroom, her right to privacy under the First, Third, Fourth, Fifth and Ninth Amendments, her right to be free from arbitrary and unreasonable interference by the police, and her right to counsel.
The only claims athat survived were Plaintiff's Section 1983 claims against Blake individually for violation of her First Amendment right to be present in the courtroom and her Fourth Amendment right to be free from an illegal seizure of her person, as well as any corresponding request for injunctive relief.
This is a point of personal privilege, but I thought some readers might get a kick out of it.
For several days now, our oldest, Grayson, who is a sophomore at Loyola in Shreveport has been trying to figure out who to go as for "historical person" dress-up day today during Homecoming week. (today they get to dress as a historical person – tomorrow will be as a Disney character, and so forth). He knew he was going to wear his dark suit, but couldn't find a hat to go as Abraham Lincoln, and was having trouble thinking of anyone else.
At the same time, he was looking forward to the outcome of the Cowboys/Saints game last night since Loyola is pretty heavily populated by Saints fans (being as it is in Shreveport, Louisiana) while he is a big Cowboys fan (at right at his first game in 2007 in old Texas Stadium).
This morning he told us as he switched his books to his old Cowboys backpack that the big win helped him figure out who his historical character would be.
I had someone point out to me recently that the city of Plano recently renamed a street Alex Schell Place in honor of Eastern District Judge Richard Schell's late father, who was the longest appointed official in Plano's history, serving as its representative on the North Texas Municipal Water District for 45 years (a post of some import since in Texas whiskey's for drinking, and water's for fighting, as the saying - or at least the law review article - goes).
In fact, Judge Schell's family's involvement in Plano stretches back over 130 years. His maternal great-grandfather and his paternal grandfather both served as mayor of Plano. There is a Schell Elementary School in Plano, and another Schell Elementary School in Richardson, as well as a Schimelpfenig (Judge Schell's other grandparents) Middle School and Schimelpfenig Library.
Congratulations to the Schell family on this honor. I will be hunting for the street formerly known as "J" the next time I am in town.
While some attorneys have accounting or business backgrounds that provide them with the basic tools for understanding the bookkeeping and accounting processes, either for their own firm or for their client's business, many do not. For the latter, Basic Bookkeeping and Accounting for Lawyers, a short (71 pages) book by Austin patent attorney Antony Ng provides a very useful basic overview of the principles of bookkeeping, geared to the needs of a small to medium firm lawyer. The book is available in paperback, which is what I have, but is probably more useful in Kindle format.
The book starts with the most basic concepts, assuming paper bookkeeping entries for conceptual understanding, but it made particular sense to me since I recently inherited a stack of my parents' and grandparents' old ledgers and books (my grandfather was an accountant in Marshall beginning in the 1920s, and he and my dad both ran small businesses in Marshall, coincidentally both on the same block of East Austin St. that I office in today - yes, that's the Hub in the background). They made absolutely no sense to me as I was organizing them in the garage a few weeks ago, but after reading Antony's book, I can tell that reviewing them is going to be a lot more interesting now. Like most attorneys my age, I have really never had to review paper bookkeeping or accounting records – it has all been computer printouts, so the original ledger entries didn't make a lot of sense. After reading this, it does. Apparently my mother spent way too much money on clothes.
Shy v. Director, TDCJ-CID, 4:11cv378 (9/19/14)
Judge: Ron Clark/Amos Mazzant
Holding: Petition for Writ of Habeas Corpus Denied
Judge Clark adopted Judge Mazzant's report and recommendation that the petitioner's petition for writ of habeas corpus be denied. The grounds asserted were ineffective trial counsel, prosecutorial misconduct, trial court evidentiary rulings, insufficient corroborative evidence and actual innocence.
U.S. Ethernet Innovations, LLC v. Texas Instruments, 6:11cv491 (9/18/14)
Judge: Michael Schneider
Holding: Equitable Defense of Laches Rejected
Following the trial in this case, the court conducted a separate evidentiary hearing on laches, at which it heard the live testimony of five witnesses, and accepted deposition designations, prior trial testimony, and exhibits for consideration as well.
After reviewing the underlying facts, Judge Schneider began by concluding that TI had not fully disclosed its position on laches during the discovery. Nonetheless, he determined that even if the court considered the undisclosed evidence, it would reject the defense anyway because TI could not prove material prejudice, and the doctrine of unclean hands prevented it from benefiting from an inequitable remedy.
I was doing research for my forthcoming article on patent litigation in Texas for the Year in Review issue of the Texas Bar Journal and ran across an article that I thought readers might be interested in.
In an article shortly to appear in The Green Bag, Coming of Age for the Federal Circuit University of California Hastings College of the Law professor Robin Feldman calls attention to the fact that the Supreme Court granted certiorari in more patent cases this term than any other since the Circuit's creation in 1982 (because of course no one else noticed that, right?), and in several cases rejected the Federal Circuit's logic in unanimous or near – unanimous opinions. (Again, if this is a spoiler I do apologize).
The article proposes messages that she believes can be ascertained from the Supreme Court's decisions, and expresses opinions on the Circuit's response to the Supreme Court's rulings. I don't know what your opinion will be about the author's statements, but I'd be willing to bet that almost everyone who reads this weblog is going to have one.
I am not recommending the article because I agree with all of the statements in it – on the contrary, some I would vigorously challenge - but I believe it is a very interesting and thought-provoking article that many readers of this blog would find worth their time.
Esparza v. Director, TDCJ-CID, 4:11cv425 (8/28/14)
Judge: Don Bush
Holding: Petition for Writ of Habeas Corpus Recommended Denied
Petitioner claimed ineffective assistance of counsel at his murder trial. Judge Bush concluded that he had failed to prove that there was a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Moreover, he concluded that as to each of his claims, Petitioner failed to show that the state court proceedings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Accordingly, Judge Bush recommended that the petition be denied.
Profile Products, LLC v. Central Fiber, LLC et al., 6:13cv549 (9/15/14)
Judge: K. Nicole Mitchell
Holding: Plaintiff's Scheduling and Case Management Proposal Denied
I was over at the Tyler courthouse at a few days ago for a hearing, and the word that I heard over and over both inside the courtroom and elsewhere was "creative". What could the parties and the court do to be creative in finding a way to manage a particular case more efficiently? Which is, of course is a hallmark of the Eastern District of Texas going back to then-Chief Judge Robert Parker's Civil Justice Expense and Delay Reduction Plan in 1991. They may have been creative before then, of course, but at that time there wasn't much of a record being kept. As Milton Gould and Edward Weinfeld observed in The Hero Judge in 1992, "the accomplishments of the trial judges are written in water.... Like the heroes Horace described who lived before Agamemnon: 'They are all unmourned, and consigned to oblivion because they had no bards to sing their praises.'" Things have changed a bit since then, haven't they?
Of course while creative is a good thing, it still may not actually work in practice. For example, in this case the plaintiff came up with an undeniably creative proposal, but not until the scheduling conference. In order to consider this last-minute proposal, Judge Mitchell delayed the case to allow briefing, and issued this order regarding the proposal.
Plaintiff proposed an "expedited bench trial" that involved just one of the asserted patents, and one of its claims, and limited the relief sought to injunctive relief only. All other patents and claims asserted in the complaint would be bifurcated and stayed (or alternatively dismissed without prejudice). The plaintiff proposed a trial date in six months, and a consolidated claim construction, evidentiary, and dispositive motion hearing, at which the parties would also receive manicures, the courtroom carpet would be cleaned, and one of the court's law clerks would learn how to play piano. (Okay, I may be exaggerating slightly but the proposal does appear to provide for a rather ambitious proceeding).
The defendant opposed the proposal, noting that the case was filed more than a year ago, and questioned why an additional seven months to try the case would result in irreparable harm. It also asserted that its Seventh Amendment rights would be impaired by allowing the Court first to determine equitable claims that share common factual issues with legal claims, and would result in the Court deciding common issues of fact relevant to the other patents and claims in suit. The Court agreed, noting that the proposal "does not truly simplify the case, but instead risks duplicative litigation," noting that the asserted patents and claims shared common facts and should be litigated together in the interest of judicial economy.
But bonus points for creativity from this bard. Wonder what would have happened if they'd jst filed on that one claim, and sought only injunctive relief?
L.C. Eldridge Sales Co., Ltd. et al v. Azen Manufacturing Pte., Ltd. et al, 6:11cv599 (9/23/14)
Judge: Michael Schneider
Holding: Defendants' Renewed Motions for Judgment As a Matter of Law Denied Except As to Willfulness; Injunction Granted in Part
After a six day jury trial in Judge Schneider's court last November, a Tyler jury returned a verdict finding all of the asserted claims infringed and not invalid. It awarded damages of $651,168 split among the three defendants, and found the defendants' infringement willful.
Judge Schneider rejected the defendants' motions directed at the jury's findings of infringement, invalidity, induced infringement and damages. However, he found that the defendants presented a "good faith, credible, and objectively reasonable invalidity argument," which he concluded raised a credible fact question as to whether the patent taught a novel concept. Accordingly the court found that the plaintiffs did not prove by clear and convincing evidence that there was an objectively high likelihood that did the defendant's actions constituted infringement of a valid patent. As a result the court did not review whether there was substantial evidence to support the jury's finding with respect to the subjective prong.
In a separate order, Judge Schneider concluded that no injunction should issue as to the three drilling rigs for which the plaintiff obtained damages (the Atwood Condor, Seadrill West Capricorn and Seadrill Sirius, if you must know). However he found that it was proper to enjoin defendants from selling or using rigs with infringing systems in the United States in the future. Accordingly, he granted the motion for injunction only with regard to infringing systems that may later be brought into the United States.
U.S. Commodity Futures Trading Commission v. RFF GP, LLC, 4:13cv382 (7/10/13)
Judge: Richard Schell
Holding: Ex Parte Emergency Motion for a Statutory Restraining Order, Appointment of a Temporary Receiver, Expedited Discovery, an Order to Show Cause regarding a Preliminary Injunction, and Other Equitable Relief Granted
Plaintiff, the U.S. Commodity Futures Trading Commission, brought this action asserting good cause to believe that the defendants were engaging in violations of the Commodity Exchange Act. Judge Schell concluded that the issuance of the requested orders was justified under the facts of the case, and accordingly entered the orders prohibiting transfer, dissipation and disposal of assets, providing for accounting and transfer of funds and documents, and for appointment of a temporary receiver.
FYI, the decisions are also coming down with regularity locally on the formerly relatively quiet front of indefiniteness analysis with at least two decisions by Eastern District magistrate judges in recent days invalidating at least one of the asserted claims in cases as indefinite under Nautilus in the context of claims construction rulings.
An entire case's set of claims being invalidated due to indefiniteness is still a rarity, but it is increasingly common for one or two claims to drop out under the newer standard during claims construction. Unfortunately, unless you're familiar with the case, it is difficult to tell how important the dearly departed claim was to the value of the case, so it's often hard to tell if the defendant has just taken out the QB or the FB.
Three more decisions from Eastern District judges in the last few days on applications for fees under 35 USC 285. All three orders were in different procedural situations – in one a defendant which prevailed on noninfringement at the summary judgment stage sought discovery into the plaintiff and its counsel's finances, in a second, a defendant sought fees after a plaintiff dismissed its case after determining that the damages would be de minimis, and in a third the plaintiff prevailed at trial, and sought fees under 285.
In one of the cases, the court had not yet determined whether to assess sanctions under Rule 11 or Section 285 following granting summary judgment of noninfringement, but did grant a request to seek discovery of settlement and license agreements, as well as agreements regarding compensation to the plaintiff's counsel. The Court denied the requested discovery into plaintiffs counsel's insurance policies and the personal finances of its counsel as premature. The court also permitted discovery of documents on the defendant's claim that the plaintiff's principal might be liable individually on an alter ego, veil piercing or other theory, as well as a deposition of the principal. In doing so, the court rejected the argument that the discovery was premature until it had determined whether to assess sanctions under either ground.
Fees After Plaintiff Dismisses Case
In a second case, the plaintiff voluntarily dismissed its case shortly before trial, claiming that it had received discovery responses which indicated that the damages would be de minimis. Defendant declined to consent to a dismissal with prejudice, and asserted a claim for fees. The court denied the claim for fees under the prior 285 standard earlier this year, and recently reaffirmed that decision under the Supreme Court's recent authority in Highmark and Octane Fitness.
Fees After Plaintiff Wins At Trial
As I have previously noted, plaintiffs verdicts in patent cases are a rarity locally recently, so we are fortunately to have one data point where the court passed on a prevailing plaintiff's claim for fees under 285. However in that case as well, the Court noted that simply changing positions during a case did not make it "exceptional" – in fact both sides altered their strategy throughout the case and such actions were not extraordinary or even unexpected. Similarly even though the jury rejected all of the defendants positions, and the court rejected many of its proposed claim constructions, the case presented "truly questions of fact to be resolved by the juror's as factfinders." Accordingly, considering the totality of the circumstances, the court could not conclude that this was one of the "rare cases" that warranted an award of attorneys fees under 285.
United States ex rel. Harman v. Trinity Industries, Inc., 2:12cv089 (9/18/14)
Judge: Rodney Gilstrap
Holding: Emergency Motion for Legal Ruling Pursuant to Rule 16 and Emergency Request for Certification of Interlocutory Appeal Denied.
Judge Gilstrap began his order on this motion by noting that this "Rule 16" motion was simply a motion for reconsideration of the court's prior order denying the defendant's motion for summary judgment. He also found that both the motion for reconsideration and request for interlocutory certification were untimely and without merit, and denied both motions.
In this case, the Defendant asked the Court to declare that recovery was barred under the False Claims Act as a result of an action by the FHWA. The Court noted that Trinity advanced this argument in a motion to dismiss, which was denied. It then presented the same argument in a motion for summary judgment, which was also denied. It then presented the issue again in a subsequent pretrial hearing, which was again denied. (Somewhere in here there was a mistrial, which we'll get to presently). Accordingly, a close reading of the motion indicated to the Court that this could possibly be yet another attempt to advance this argument in a different procedural context.
Speaking of procedural context, Judge Gilstrap noted that Trinity cited no precedent for its effort to come within Rule 16, but instead argued that its motion had framed a legal issue, which was "in stark contrast" (Trinity claimed) to its motion for summary judgment, which only sought a final judgment.
No, it didn't make any more sense to the Court. "This argument borders on the absurd," Judge Gilstrap wrote, before revealing what Rule 56 actually says, and concluding that the new motion was simply an untimely motion for reconsideration of the court's denial of Trinity's prior motion for summary judgment.
But wait - "absurd" is just the starting point here. "In an argument that the court considers to be nothing less than bizarre," the Court wrote, "Trinity also claims that it is entitled to a rehearing of its summary judgment motion – after a mistrial and just over a month before the scheduled retrial – because it will 'save an enormous private and public resources on another super–expensive trial.'" (Emphasis added by the Court). Why bizarre? Here's what the Court has to say:
This Court declared a mistrial, in large part, because of the allegation that Trinity threatened a potential witness in this case, Dr. Dean Sicking. During a conference with counsel in chambers in the midst of the prior trial—and before the Court declared a mistrial—Trinity's counsel, Ethan Shaw, unequivocally represented to the Court that Trinity had insisted on an opportunity to depose Dr. Dean Sicking in advance of trial, but were unsuccessful because relator's counsel had intentionally shielded him from discovery. It was this representation from defense counsel that played a major role in the Court's ultimate determination that allowing the original trial to go forward would unfairly prejudice Trinity. Trinity's memory of this exchange seems to have failed. See Dkt. No. 397, at 4; Dkt. No. 409, at 21–23; Dkt. No. 447, at 4. The Court's memory of this exchange has not failed.
It strains belief that Trinity would now raise the mistrial and subsequent re-setting of this case for trial—a circumstance that Trinity increasingly appears to be responsible for—as a justification for considering its untimely motion for reconsideration.
Accordingly, the motion was denied. Trial is set for October 13.
Securities and Exchange Commission v. Shavers, 4:13cv416 (9/18/14)
Judge: Amos Mazzant
Holding: Plaintiff's Motion for Summary Judgment Granted
The defendant founded and operated an unincorporated online investment scheme "Bitcoin Savings and Trust" from his McKinney, Texas home. Unsurprisingly, his offer and sale of securities was not registered with the Securities and Exchange Commission, which took offense to the operation.
After providing a useful summary of what exactly "Bitcoin" is, and a detailed factual recitation of how a Ponzi scheme works, as well as a useful illustration of how not to defend the case, Judge Mazzant concluded that the uncontested summary judgment evidence established a violation of the Securities Act, and enjoined the defendant from further activities, as well as holding them jointly and severally liable for disgorgement of profits gained as a result of the conduct alleged in the complaint of $38,638,569 (which was the commission's reasonable approximation of profits based on the evidence in this action, given the difficulty in ascertaining the exchange rate of Bitcoin into the U.S. dollar and the lack of information from the defendant), as well as civil penalties of $150,000 each against the defendant individual and the defendant entity, s well as prejudgment interest.
One might be tempted to ask what level of legal representation a Bitcoin profit of $38 million would buy? According to the order, it bought a default judgment, which the court agreed to set aside, one counsel that filed a motion to withdraw stating that his services were terminated by defendants, and no response to a summary judgment motion, nor compliance with the court's order requiring production of information to the commission.
It is hard to make all those Beanie Babies my wife bought in the '90's look like a relatively sound investment. But I think this guy just did it.
C.P. v. Krum Independent School District, 4:13cv6 & 17 (9/17/14)
Judge: Ron Clark / Amos Mazzant
Holding: Defendant's Motion for Judgment on the Administrative Record Granted
Judge Clark adopted Magistrate Judge Mazzant's report and recommendation recommending that the defendant school district's motion for judgment on the administrative record be granted.
This case arose under the IDEIA, the Individuals with Disabilities Education Improvement Act, 20 USC 1400, which was enacted by Congress "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]"
In this case, a parent challenged the appropriateness of a disabled child's "individual education program" (IEP) established by a local educational agency, alleging, among other things, that the school district failed to evaluate the child in all areas of suspected disability, and specifically dyslexia, dysgraphia, ADHD and and autism spectrum disorder, (as an aside, I'm amazed that my dictation software recognized the word "dysgraphia"), and failed to provide counseling, therapy and social skills, and adequate FBA and BIP. The relief requested was payment of the student's tuition at the private school he was enrolled in after departing the school district's facility.
Judge Mazzant concluded that the requested relief – reimbursement for private school tuition – was not justified, and recommended that the defendant school district's motion for judgment on the administrative record be granted. As noted above, Judge Clark agreed, and entered judgment accordingly.


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Below is a link to our portal for filling out registration forms, requesting appointments, and sending us questions and information in a secure and confidential manner.

subset: commoncrawl


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Food Prices: A Boon for Producers, a Buffer for Consumers - Study
by Statistics Canada
Source: HANS e-News - June 15, 2008
Canada is uniquely positioned to weather the storm of sharply-rising prices for grains and rice, and is even poised to profit from the current surge, according to a study released today in the Canadian Economic Observer.
Overall, consumer prices for food consumed at home in Canada have risen only 1.2 percent in the 12 months ending in April 2008. Food prices increased 7.1 percent in the European Union and 5.9 percent in the United States during the same period. Countries in Asia with rice-based diets are experiencing the fastest increase in food costs, as the price of rice doubled early in 2008.
While consumers in Canada face higher prices for bread and cereal products, they have been insulated at the checkout counter from higher overall grocery bills by stable or falling prices for most other products, the study found.
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- matthewsaurusmusic posted this
On a constant search for new songs and artists to obsess over. What's usually in my tape deck is soul, first wave and two tone ska, techno and electronica, and 70's-90's indie alternative and punk rock rock. I showcase some of my favorite artists on this tumblr. I've recently started a weekly podcast Called Matthewsaurus' Mix Tape Majesty.


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The recent financial crisis made clear that insufficient attention was paid to sources of systemic risk that can threaten the stability of the financial system and, with it, the real economy. Moreover, the crisis showed that it is critical for government officials to have and be able to use the tools necessary to prevent and mitigate systemic threats.
The Bipartisan Policy Center's (BPC) Energy Project held a series of four moderated discussions over the course of 2013 and 2014. The discussions focused on recent and emerging trends in global oil and natural gas production, and on how they impact energy markets, energy diplomacy, and economic growth.
Access to federal health care data plays a critical role in supporting new delivery system and payment models that deliver better outcomes. It also serves the needs of consumers who want more information to support decision-making, and health care leaders who are taking important steps to improve the population's health.
In early 2014, the Bipartisan Policy Center's (BPC) Health Project began discussions with a diverse set of health care experts and stakeholders on issues related to physician payment reform and transitioning to alternative systems of payment and delivery.
Mounting fiscal challenges have forced policymakers to confront difficult budgetary choices. One of the most important concerns is spending on our national security: whether to cut the defense budget and, if so, by how much.
"On behalf of the Bipartisan Policy Center (BPC), thank you for the opportunity to provide comments on improving the accessibility and utility of health care data, while maintaining and protecting patient privacy.


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Get Smart (Single-Disc Widescreen Edition) - Region 1 DVD
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Get Smart
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1 voteI love the original series of "Get Smart", so I was really looking forward to seeing this new movie, and I wasn't disappointed at all. Utterly ridiculous, but with a great cast and a script that includes elements of the original show, "Get Smart" is an excellent comedy, and one that I will be adding to my collection for sure. Anne Hathaway and Steve Carell are perfect as agents 99 and 86, and I ... read more
Website: Amazon
Description: Steve Carell is in CONTROL as Maxwell Smart, he novice agent often out of his depth but never out of options in this action comedy pitting him against the nuclear scheme of the evil spy group KAOS. Anne Hathaway partners with Max as ever-capable Agent 99. And director Peter Segal (The Longest Yard) guides his stars (including Dwayne ... (more)
Manufacturer: Warner Home Video
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Celebrities involved in murder cases
POSTED: 8:58 AM Jun 27 2013 UPDATED: 2:00 AM Jun 12 2014
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Take a look at these celebrities and sports stars involved in murder cases.
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Original Photo 1970 Lansing Michigan
Original Photo 1970 Lansing Michigan
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Sold Date: 05/03/2010
Channel: Online Auction
Source: eBay
Category: Fine Art
You are bidding on an original news photo from July 22, 1970 featuring funeral services are to be held in the Central Methodist Church for Laurie Murningham, who was killed following a kidnapping and robbery. This photo originates from the archives of Chicago Sun-Times and Chicago Daily News. This is not a reproduction or reprint. Most photos have never been seen by the public. This photo measures 8" by 11" and is in fair condition. All photos shipped first class mail. Shipping and handling is $5 for the first item and .50 for each additional item. Canada $10.95 - International Shipping is available for $12.95. for more amazing original photos. Some of these pictures have the original crop marks that can be easily removed. Good luck bidding!
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Naturally Christmas!
Get into the spirit of Christmas at the Columbus Botanical Garden! Join Samantha Grey and the CBG floral designers as they inspire your creativity and…
read more
Get into the spirit of Christmas at the Columbus Botanical Garden! Join Samantha Grey and the CBG floral designers as they inspire your creativity and…
read more
May 3, 2014
We have so many exciting events on the horizon. Mark your calendars for these exciting opportunities to experience your Garden in new ways!
February 18, 2014
The Columbus Botanical Garden is excited to announce the news of our new Executive Director, Matt Whiddon. Matt is active in the Columbus community as the founder and president of Columbus in Color Landscape Group. He holds a Bachelor of Science in Horticulture from the…
read more
February 11, 2014
We are hard at work to bring you our largest variety of the most sought-after plants and landscape materials within our bi-state area at the annual Plant Sale & Garden Market. The event will be from 10 a.m. to 4 p.m. May 2-3. Our "Members Preview…
read more
January 17, 2014
Our annual Gala was a great success with over 200 people attending the silent auction, luncheon and guest lecture on October 22nd at the Green Island Country Club. The keynote speaker, Dr. Alan Armitage, entertained the attendees with his lecture, "Tales of the Garden." The…
read more
The Columbus Botanical Garden's mission is to preserve a portion of the rapidly diminishing open space in Columbus and to provide the public with a unique educational facility that is based on environmental awareness, horticulture, historic preservation and agricultural values.
Our garden and trails are open from dawn to dusk daily.
Please be respectful of private events during your visit.
Our offices are open Monday - Friday from 9 a.m. - 5 p.m.


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Heinz taste of home butternut squash, carrot and apple - stage 1
Product Summary
Suitable for stage 1
Vegetables (41%, Butternut Squash (25%, Carrot (16%)), Water, Apple (15%), Skimmed Milk Powder, Cornflour, Concentrated Apple Juice, Vegetable Oil, Iron Sulphate
Preparation & Storage
- Easy peasy prep.We've made this dish delicious for your baby to enjoy hot or cold. Serve straight from the pot or in a clean bowl and always check the temperature before serving to your little one.
Once opened, unheated food in the pot can be stored in the fridge for up to 48 hours. If feeding direct from the pot, any remaining food at the end of the meal must be discarded.
Please note that whilst we take every care to ensure the product information displayed on our website is correct, product recipes are regularly changed and this may affect nutrition and allergen information therefore you should always check product labels and not rely solely on the information presented here.If you require specific advice on any Waitrose branded product, please contact Customer Support on 0800 188884 or email firstname.lastname@example.com. For all other products, please contact the manufacturer.This information is supplied for personal use only. It may not be reproduced in any way whatsoever without the prior consent of Waitrose Limited nor without due acknowledgement.


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The Atlanta Braves continued their recent dominance against the Colorado Rockies on Monday night, winning by a score of 3-1 in the series opener between the two teams. The Braves (33-29) have gone 15-3 against Colorado (29-34) since 2012, and this victory gave Gavin Floyd his first win in the last 20 months.
The 31-year-old Floyd navigated 6.2 innings, giving up three 3 hits while allowing only one run. Floyd was sharp from the beginning of the game, but he was matched pitch for pitch by Rockies rookie Christian Bergman for the first three frames. Bergman was making his first career start, and the youngster began the game by not allowing a hit until B.J. Upton's infield squib in the fourth. Upton's subsequent stolen base led to a two-run fourth inning for the Braves, who never relinquished the lead.
Chris Johnson had three hits for Atlanta, along with two RBI's in what amounted to a "breakout" game after a season-long slump. The Braves scored two in the fourth, and tacked on one more run in the 7th frame on an RBI single up the middle from Johnson. Rookie reliever Shae Simmons had another impressive outing in the 8th, retiring three consecutive Rockies including all-star shortstop Troy Tulowitzki to send the game to the final inning. Craig Kimbrel slammed the door in the ninth by striking out pinch-hitter Wilin Rosario on a sharp slider.
For Floyd, the 'W' was well earned. Despite his 2.80 ERA coming into the game, his record stood at 0-2. Surprisingly enough, Floyd earned his first win in nearly two years at Coors Field, a notoriously bad pitchers park, and he was incredibly impressive against one of the best lineups in the National League.
The win was crucial for Atlanta who came into the game tied atop the NL East with Miami and Washington. Atlanta gets a big boost for a seemingly fatigued bullpen Tuesday when setup man Jordan Walden is scheduled to return from the disabled list.
The Braves face the Rockies again on Tuesday when Mike Minor faces off against the Rockies' right-hander Juan Nicasio.
Tags: Atlanta Braves


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Julianne Hough Reveals Some Awesome Boobage
So Julianne Hough showed up to do a segment on Extra the other day, and normally, I'd complain about how now that Maria Menounos and her perfect Greek booty are gone, it robbed us of the chance for one hell of a lesbian fantasy. But forget all that, because thanks to this outfit Julianne's got on and all that cleavage of hers, she's currently giving me more than enough for a fantasy all on her own. Like the one where the two of us are stranded on a desert island and our only hope is to motorboat our way back home.
Photos: PacificCoastNews, Fameflynet


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Seriously. Go fuck yourself, dairy industry.originally titled elsewhere:via Grist on 2/17/12
There was a time, not too long ago, when American's milk options were limited to various forms of cow's milk (i.e. full-fat, reduced-fat, skim, lactose-free). But times have changed. Soy was the first non-dairy milk to "go mainstream" in the mid 1990s, and you can find "milk" varieties including almond, coconut, hazelnut, hemp, oat, and sunflower seed on supermarket shelves,
Much like an only child who is the center of attention until a sibling comes along, Big Dairy has started to lash out. "Alternative milks" are no longer relegated to the vegan world; many vegetarians and omnivores also purchase and consume plant-based milks. This is bad news for Big Dairy (a.k.a. The California Milk Processor Board).
Behold their latest campaign — "Real Milk Comes From Cows" (tagline: "many imitations, still no equal"). The idea, apparently, is to point out all the ways in which plant-based milks have cooties. One of their inane recent ads can be seen in the screenshot below:
Coconut milk is described as "spooky" for looking so "real," or similar to cow's milk. Hazelnut milk is supposed to creep us out because of the "stuff on the bottom," Almond milk is dissed for having a "funky" color, and soy milk is unveiled as a product that doesn't come from a cow (when did it ever claim to?).
This campaign wants to sell the idea that only dairy milk is "real." Other milks, we are supposed to believe, are "not natural" and have long ingredient lists with questionable ingredients. Now, for the fun part: pointing out how misguided, inaccurate, and illogical this campaign is.
- Carrageenan — a seaweed extract used to impart a creamy mouth feel to some commercial plant milks — is highlighted in this campaign as a sketchy ingredient. Its safety was called into question after a 2001 literature review in Environmental Health Perspectives. In 2003, the Joint Food and Agriculture Organization/World Health Organization Expert Committee on Food Additives, which had declared carrageenan safe in 1998, but reopened the case after that 2001 literature review, reaffirmed that carrageenan was safe for consumption[PDF]. Regardless, carrageenan is not present in all commercial plant milks. As reader Brent points out, carrageenan is sometimes in dairy products, too (i.e. heavy cream).
- Carob bean gum, guar gum, and xanthan gum are also pointed out, seemingly to show how "artificial" these plant milks are. The first two gums are made by simply dehusking and milling respective beans into a powder. Xanthan gum, meanwhile, is the end result of sugar fermentation. They are worlds apart from chemical additives, artificial sweeteners, or artificial dyes. And, as with carrageenan, not all plants milk contain these gums.
- All plant milks can be made at home with a blender and a nutmilk bag, so it is possible (and very easy!) to drink these without any added ingredients.
- The bottle of "real milk" in this campaign contains skim milk. Come again? Now, I'd say "Real milk" is what comes straight from the cow — and it ain't skim.
- While the dairy industry point to the "weirdness" of hazelnut milk's "stuff at the bottom." Talk to any dairy purist and they will tell you that "real milk" is non-homogenized (aka, "the cream rises to the top"). So, if anything, real milk doesn't have a uniform look. But, remember, this is Big Dairy. This is not about a small farmer who produces non-homogenized organic milk from pastured cows. This is CAFO-made, corn and grain-fed milk from cows that, very likely, are treated with hormones and antibiotics.
- You can see more of their desperate attacks on plant milks in this TV spot, titled "Shake."
Big Dairy is clearly afraid. Once the lone shining star, it now has no option but to coexist among others that are rising in popularity. It's worthy of a screenplay; one that showcases the plummeting fall from grace of a once-renowned A-lister. It may be time to start penning Dairy Dearest …
This post originally appeared on Small Bites.
Reblogged from Seth Wood Tattoo
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I notice that the Dairy Industry doesn't want to list the ingredients in real milk. I guess blood, puss, and hormones...
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Watch out! The Wily Witch has her eye on you as yet another addition to her the boiling cauldron. Scare up some Halloween fun when you decorate with this 3' x 5' plastic film window poster. Step up the drama by turning on a lamp to create an eerie sight visible from the street.
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text: Owen F. Brock By: admin August 28, 2006 Owen F. Brock, a defense attorney who often gave advice to local politicians, died Aug. 14 of cardiac failure in Hampton, N.H. He was 90. Brock grew up in Charlestown and attended Holy Cross College, graduating from Boston College Law School in 1941. The day after the attack on Pearl Harbor, Brock was sworn in as an ... Subscribe Login Email Address: Password: Already a paid subscriber but not registered for online access yet? For instructions on how to get premium web access, click here.Forgot your password? Share this:EmailPrintFacebookLinkedInTwitterGoogle +1 1:00 am Mon, August 28, 2006 Massachusetts Lawyers Weekly admin


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New Listings/Homes For Sale Medina County, Ohio
The homes for sale below are all the newest listings/homes for sale this week in the Medina County/Cleveland, Ohio area. The cities include Medina, Brunswick, Wadsworth and more. They're listed in order by city and price. To search all homes for sale in Northeast, Ohio use our Ohio MLS Search. There you'll find all photos, virtual tours, maps, neighborhood/school information and more!
If you're going to be buying or selling a home, contact RE/MAX of Cleveland anytime to discuss your options and to get the process started. To see a home in person, contact Cecilia Sherrard and RE/MAX to schedule a showing or for any questions. The homes listed below are current and pulled from the Ohio MLS. They're subject to change in status or price.
4 Responses to "New Listings/Homes For Sale Medina County, Ohio"
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I think it's again time for a little preview of my new upcoming Castle and Beckett drawing, called "the morning after" Hope u guys will like it :3
oh, we will love EVERYTHING about Caskett's morning after.
YOU ARE SUCH AN AMAZING ARTEST!!!! you so need to finish this the fandom will go insane!!!! ;) :)
I'm seriously DYING of anticipation right now. I'VE BEEN WAITING SO LONG FOR PEOPLE TO DRAW MORE ART LIKE THIS! :'D
asdkfgha;tni;sdkjhga *DEAD*
^What she said.