Eastern District of Texas Federal Court Practice

Watch out for flying Sparks...

No, it's not from an Eastern District judge, but anytime a judge thinks enough of a motion to write an order in verse, it's worth reading.  Download sparks_poem.pdf

ED Bar Donates $10,000 to Library in Memory of Judge Hannah

On behalf of the ED Bar, John Mercy, left, president of the Bar Association for the U.S. District Court for the Eastern District of Texas, presented a $10,000 check to Claude E. Welch, right, a local attorney heading up the Hannah Reading Room fundraising efforts for the T.L.L. Temple Memorial Library in Diboll.  The donation is in honor of the memory of the late Chief U.S. District Judge John Hannah Jr., who grew up in Diboll.  The room will contain books, art, furnishings, photographs and memorabilia from Judge Hannah's life and career.  The library's $2 million expansion project will break ground at 5 p.m. Wednesday with ceremonies on the library grounds in downtown Diboll. Donations to the Reading Room Fund can be sent to the library at 300 Park Street, Diboll, TX 75941. Please make checks payable to the T.L.L. Temple Memorial Library Building Fund and note that the donation is for the Hannah Reading Room Fund.

Summary Judgment Denied in Family Medical Leave Act Case

Shepard v. Tyson Foods, Inc., 2007 WL 1127408(E.D.Tex. Apr 16, 2007) (NO. CIV.A. 9:06CV84)
Judge: Ron Clark/Judith Guthrie
Holding: Defendant's Motion for Summary Judgment DENIED
Magistrate Judge Guthrie's report recommending denial of the motion succinctly stated the issue:

In this case, the parties dispute whether Plaintiff put Tyson on notice that she was sick due to pregnancy complications. The parties submitted competing summary judgment evidence concerning whether Tyson knew about Plaintiff's pregnancy or that she was seeking leave from work due to sickness or complications resulting from her pregnancy. Tyson denies such knowledge and Plaintiff asserts that she told her supervisor that she was pregnant, that she was suffering sickness resulting from complications with her pregnancy and that she needed medical attention for those complications. Whether or not Tyson was put on notice of Plaintiff's need for FMLA leave is a disputed issue of material fact that should be determined by the fact-finder at trial.

Motion for Summary Judgment in Transportation of Household Goods Case

Conti-Harding v. Eden Relocation, Inc., 2007 WL 1136092(E.D.Tex. Apr 16, 2007) (NO. 6:06-CV-27)
Judge: Michael Schneider
Holding: Motion for Partial Summary Judgment GRANTED IN PART
This lawsuit arises from the transportation of household goods owned by Plaintiff Conti-Harding from Tracy, California to Alba, Texas by Defendant United Express Moving Systems, Inc. (“United Express”), and a dispute over whether the Defendants' liability for damages to Plaintiff's belongings is limited under a bill of lading and the Carmack Amendment to the Interstate Commerce Act.  Defendants moved for partial summary judgment on the questions of whether United Express met all requirements under the Carmack and Cummins Amendments to limit its liability to 60 cents per pound, whether Eden Relocation, Inc.'s liability should also be limited to 60 cents per pound, and whether Plaintiff's claim for intentional infliction of emotional distress is preempted by the Carmack Amendment.
The Defendants' motion for summary judgment on the question of whether United Express's liability is limited to 60 cents per pound was denied.  The Court next concluded that, should it be found that the Bill of Lading limits United Express's liability to 60 cents per pound, and should Eden be found liable for any of Plaintiff's injuries, Eden's liability would be limited to the same extent as that of United Express.  Finally, the Court found that Plaintiff's claim for intentional infliction of emotional distress is dismissed.

Immanuel Kant and Metaphysical Arguments in Claims Construction

Helena Laboratories Corp. v. Alpha Scientific Corp., 483 F.Supp.2d 538 (E.D.Tex. 2007)
Judge: Ron Clark
Holding: Defendant Alpha Scientific Corporation's Motion to Alter or Amend Judgment DENIED
Another day, another Eastern District court citing eighteenth century philosophers on the propriety of metaphysical arguments in claims construction.
On January 25, 2007, the Court granted Plaintiff's Motion for Summary Judgment, holding that Helena's H-Pette 3611 Product did not infringe because it does not include or use stabilizing supports, as defined by the court in its Markman ruling.  Defendant sought reconsideration.
"Defendant's present assertion that “passageway” can mean either space or the structure around it employs the same metaphysical argument already rejected in this court's Order on Plaintiff's Motion for Summary Judgment," Judge Clark wrote.  "Claim construction is not determined by metaphysical argument."  But, assuming arguendo ... "Even a metaphysical argument leads nowhere because a description of space as a theoretical concept means nothing if the meaning is not presented in an empirical object. See Immanuel Kant, Critique of Pure Reason 259-260 (Norman Kemp Smith trans. Macmillan & Co. Ltd.1963)."  (Citation to Kant in original.  No, I mean it - it really is).

The Curmudgeon's Guide to Practicing Law - Mark Herrmann

Book reviews are usually posted in my personal weblog Puttering in the Study where I can explain why this book on history, that book on naval history, or this other book on Byzantine history was of interest to me, but since this book deals with the practice of law, I thought I'd post it here.
I heard about Curmudgeon's Guide published by the ABA Press a few weeks ago and ordered it, intrigued at whether all of the Jones Day partners were like the ones I've worked with for many years, most notably Tom Jackson, Mark Reiter, and Ken Adamo (listed in order of how quickly they have obtained summary judgments in our cases recently, as the Curmudgeon would wholly approve of).  Well, I still don't know if they are, but at least now I know why these guys are the way that they are.
This is without a doubt the best book I have ever read on the practice of law, and explains a lot (especially to those of us that have never been tall-building lawyers) about how we should do our jobs.  While much of the book deals with the environment  of large firms, where associates market their services to internal "clients" for many years before they start actually being allowed outside the  office unsupervised, it provides some useful guidance on what's important and what's not for the rest of us.  Highlights are The Curmudgeonly Secretary (which I immediately gave my assistant to read) and The Curmudgeon's Law Dictionary (which was the original reason I bought the book - anything that gets compared to Ambrose Bierce's The Devil's Dictionary I will buy, read, and station on my credenza for later use in writing briefs).
If you have the time, get a copy and read it.  It's the best advice I've ever read for a young associate, especially at a large firm, and a good laugh for the rest of us.  One warning - it will get into your subconscious.  For example, the next time that you think about circulating an early or unfinished version of something with a big "draft" caveat on it, this annoying little voice will ask you why you are putting out something that is not yet complete or your best effort.  (I just ignore it myself, but it may bother some other people).
Nice work, Mark.  I look forward to getting my copy signed one of these days.

UPDATED - "Paid or incurred" case from the Eastern District

This will be of no interest to patent practitioners, but to attorneys who prepare and try personal injury cases this case will have great significance.
House Bill 4, which was enacted by the Texas Legislature in 2003 was an omnibus tort reform bill which included an amendment to the Texas Civil Practice and Remedies Code adding section 41.0105, which states, “In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” 
In Self v. Wal-Mart Stores, Inc., 2:05cv301, Magistrate Judge Love was presented (in the context of a motion in limine asking to exclude evidence of what of the plaintiff's medical bills were "written off" by Medicare or Medicaid (the opinion isn't clear which applies in this case, and the issue would apply to private health insurance as well).  The collateral source rule prohibited such evidence prior to 41.005 - the question was whether the new statute changed that.  Judge Love noted that plaintiff's counsel conceded that the sponsors of the bill intended to do away with the collateral source rule, but it was unclear whether the winnowed-down version of the bill that was actually passed did that, i.e. whether  "incurred" meant that full amount of the medical bill was recoverable or only the part that that was not written off.  Judge Love reviewed Texas caselaw on the meaning of "actually incurred" in this context, and concluded that "[u]ntil the Texas legislature speaks more clearly to this issue, the Court is reluctant to overturn well-settled law that the language 'incurred' means the full amount of a plaintiff's medical bills, even when the amount is ultimately paid by insurance or written off.

Update:  The Texas Legislature is considering an amendment to this section due in part to exactly the issues addressed by Judge Love.  Yesterday CSHB 3281, by Representative Phil King (R - Weatherford), was passed out of the House Civil Practices Committee yesterday with no dissenting votes. The version that passed stipulates that Section 41.0105 of the Texas Civil Practice and Remedies Code only applies to health care liability claims under Chapter 74 (which would virtually eliminate the provision's applicability to cases in federal court).  Click on Download 041907cshb3281.pdf to download the Committee Substitute for HB 3281. (Until the Committee report is filed, this language is unofficial). The bill now goes to the House Calendars Committee to be scheduled for floor consideration.

Motion to Transfer Patent Case Granted

Orica Explosives Technology, Pty., Ltd. v. Austin Powder Co., 2007 WL 1115238(E.D.Tex. Apr 13, 2007) (NO. CIVA 2:06CV450 TJW)
Judge: T. John Ward
Holding: Motion to Dismiss DENIED; Motion to Transfer Venue GRANTED
Judge Ward denied the motion to dismiss based on lack of personal jurisdiction or improper venue, but held that transfer was appropriate based on Section 1404.  Notably, Judge Ward noted that the defendant had shown through affidavit that the allegedly infringing product had not been sold/offered for sale in the Eastern District of Texas.

Motion for Summary Judgment Granted in Age Discrimination Case

Todd v. Alcatel USA Resources, Inc., 2007 WL 1115244(E.D.Tex. Apr 13, 2007) (NO. 4:05CV223)
Judge: Richard Schell
Holding: Defendant's Motion for Summary Judgment GRANTED

Patent Verdict - QPSX v. Nortel

About fifteen minutes ago a Marshall jury in Judge Ward's court found for the plaintiff in QPSX Development 5 PTY LTD v. Nortel, et al., 2:05cv268 (Nortel was the only defendant remaining at trial).  The jury found infringement, willful, and (I assume) no on invalidity.  Damages awarded were $28.1 million.  I'll post more as I hear more, but offhand, following the two defense verdicts last fall, this is the first plaintiff's verdict in a Marshall patent case since last spring.  It is the second patent trial in the district, following the dismissal of the plaintiff's case during trial in the Clear-Value case in Tyler earlier this month.  Trial began Monday morning and arguments began at midmorning this morning.  Jury declined to go to lunch (at least initially - I don't know if they did later) and returned a verdict around 2:30pm.