Eastern District of Texas Federal Court Practice

William Wayne Justice (1920-2009)

Former Eastern District of Texas chief judge William Wayne Justice passed away yesterday at his home in Austin.  Judge Justice was appointed to the Eastern District bench in 1968 following several years as U.S. Attorney for the district.  Judge Justice officed in Tyler for the first thirty years of his career on the bench, then moved to Austin after taking senior status to be closer to his daughter.

His accomplishments in over forty years on the bench were many, as detailed in the obituary in today's Austin-American Statesman.  It's a good read, and will give those who didn't know much about the Judge a chance to see what all the fuss is about.  My favorite quote about Judge Justice (and I can just see her saying it with a twinkle in her eye) is from my former professor the late, great Barbara Jordan, who once said that Judge Justice "helped officials in Texas state government see their duty clearly."  I think the judge probably liked that one.

Patent Case Transferred

Prust v. Apple Inc, No. 2:09cv00092 (10/7/09)

Judge: T. John Ward    2009-10-07

Holding: Motion to Transfer Venue GRANTED

Short and sweet result for defendant Apple.  Judge Ward wrote that "[t]he plaintiff is in Minnesota, the defendant is in the Northern District of California, and the non-party witnesses are in Minnesota, California, Missouri, Illinois, New Mexico, Colorado, Montana, Georgia, and Florida. The plaintiff has failed to show greater convenience or a sufficient connection to this District that would warrant denying transfer."

Motion to Dismiss Resolved in Patent Infringement Plus Case

Ola, LLC v. Builder Homesite, Inc., 2009 WL 3190443(E.D.Tex. Sep 29, 2009) (NO. 2:08-CV-324-CE)
Judge: Chad Everingham
Holding: Motion to Dismiss GRANTED in part and DENIED in part

Lots of holdings in this opinion by Judge Everingham in a case which involves allegations that the defendants infringed patents, violated the Illinois Trade Secrets Act, breached a contract, committed common law fraud, and engaged in unfair restraint of trade. 

The Court held that the complaint adequately stated claims of joint enterprise liability, was sufficient to state a claim for patent infringement (in part because the court had not yet construed the relevant terms), and was sufficient to state a claim under the ITSA as well as for unfair competition.   Judge Everingham granted the motion to dismiss the breach of contract claim against all but one defendant, as well as the fraud claims, holding that they were preempted by the ITSA.  Finally, the plaintiff admitted that it inadvertently forgot to include claims against three of the named defendants and sought and was granted leave to replead to fix that.

Class Action Against Trustee Wells Fargo Certified

Clower v. Wells Fargo Bank, N.A., --- F.R.D. ----, 2009 WL 901486(E.D.Tex. Mar. 30, 2009) (NO. 2:07-CV-510-TJW)

Judge: T. John Ward

Holding: Motion for Class Certification GRANTED

Plaintiffs as beneficiaries of irrevocable or testamentary trusts sued Wells Fargo, as successor administrator of trusts, alleging that it was acting without authority in administering trusts, and asserting claims for constructive fraud, conversion and trespass to title. Plaintiffs moved to certify a class action that would encompass other trusts administered by bank that shared the same trustee history.  Plaintiffs seek removal of Wells Fargo as the trustee of all of these trusts, as well as actual damages for trustee fees, commissions and other charges collected by Wells Fargo during its administration of these trusts.

Judge Ward's order goes through the various requirements for class actions under FRCP 23 and concludes that certification is appropriate, holding that "the Court is of the opinion that a class action, rather than innumerable individual actions, is the better method of litigating this dispute."

Madeleine Segal Hall (2009)

Madeleine Hall, widow of the late U.S. District Judge Sam B. Hall, Jr., for whom the Marshall federal courthouse i    s named passed away Tuesday morning at home with her three daughters.  Visitation is this evening from 6-8 pm, and funeral services will be tomorrow morning at 11 am at Eastern Hills Church of Christ.

I started to say that Judge and Mrs. Hall were married while I clerked for him, but of course they'd been married a long time before that raising their three daughters and getting Judge through an unsuccessful run for Congress in 1962 (the genesis of the Marshall Division, by the way - interesting story), and a successful one in 1976 (and four more after that), which was followed by his appointment to the federal bench in 1985, where he served until his death in 1994.  Her influence was felt at the courthouse on a daily basis when I was a law clerk - as soon as Judge Hall came in we could tell if Mrs. Hall was up when he left the house, because if she wasn't, he would be wearing one of those god-awful powder blue Congressional suits from the '70's with the wide lapels and matching shirts and ties with knots the size of my fist.  If she was up, on the other hand, he invariably looked dapper in a sportjacket and slacks with a tastefully patterned tie.  (Unless he'd been at the farm - then he was in jeans, a scruffy jacket, and that silly hat, but nobody could ever do anything about that).  There's probably an observation in there somewhere about Sam and Madeleine, but I'll leave that for those that knew the Halls better than I.

Mrs. Hall's contributions to the community in Marshall are many, and she will be missed by far more than just her family and close friends.  It was always a treat seeing this tiny china doll of a grandmother on the square at lunch and reporting to her on how Jamie and the boys were doing, and I will miss that very much.  Anyone that knew her would invariably describe her as a great lady, and there is nothing I can add to that, other than to say that if Jamie and I had ever been blessed with a daughter, I could have asked for no more than to have her grow up to be like Madeleine Hall.

Law Office Management: One number to rule them all...

 I've posted previously on some ways to set up a small office phone system inexpensively, but most lawyers these days spend most of their time on cell phones.  And that means that the lawyer may be at the number other than the one you're calling, and means two sets of voice mails, which while theoretically accessible from multiple locations, as a practical matter, isn't, or at the very least requires multiple steps and coordinating with office staff to make sure you're current on who has called for you.  (It also requires that you check your voice mail, which is something I'm really bad at).

I got on the waiting list for a Google Voice number when they came out several weeks ago, but it took a while to get off the waiting list and get a number.  GV bills itself as the telephonic equivalent of Tolkien's "one ring", capable as it is of ruling all other numbers, of finding them and binding them, as the inscription says.  You give out the "master" number and it forwards to whichever phones you've told it to.  A caveat: you cannot at present use an existing number, so you can't just designate your cell number as your GV number, as would be most convenient.  You have to select a new number, and they may or may not have a local number for you, but I didn't really mind - I have been using a out of town number as my fax number through eFax for some time.  And you can search for words or numbers, which allows you to select a number that closely matches one you already have, or spells "tuna" or whatever message you want.  (It also has immense capabilities as for as customizing where phone calls are sent, but I won't get into that - at present for the most part I just manually update it as to where I'm at, so all numbers forward to office when I'm there, and home when I'm not (cell service in the country is not real good - we learned when building our house that their is a "phone tree" in the back yard and to have a decent connection you have to stand under it - so it is a significant benefit in the Smith household to be able to redirect my mother's calls to the house phone so I don't have to go stand in the rain to talk).

GV gives you a single phone number that rings all (or some, or specified of) your phones, but the other useful features include saving your voicemail online, and transcribing your voicemail to text. I particularly like this because I can check my voice mail online or on my phone's inbox, which is far faster than calling it up on the phone.  Other features include the ability to listen in on messages while they are being left (not something I think I'd use, but it's there for telemarketers or, worse, fundraising calls from your alma maters.  When you have degrees from three schools, the calls never stop.) And the ability to make low cost international calls is something that could come in very handy on trips.  You can record also record custom greetings for your favorite callers (here's your opportunity to ratchet up the level of obsequiousness for calls from judicial chambers) or block annoying callers by marking them as spam.

The first step for using the service (once you have the necessary forwarding numbers entered, is to give the new number out so your incoming calls are routed through GV.  Rather than send e-mails out to thousands of people, I started in a low key way, by adding it to my e-mail signature block as the "master" number, and telling (well, asking, really) my paralegal and my wife to use it instead of my cell number.  I don't like listing it as a "Google Voice" number, and I decided against listing it as a "direct" number, because to most of us that has a distinct meaning - it just skips the receptionist and rings your office directly, and this is far more than that - it is an after hours number as well.

I have just started using the service, and can't really opine yet as to whether it's all it is said to be, but it has such enormous potential for letting attorneys stay more up to date with their communications, and save time doing it, that I wanted to raise it.  If you are starting a new office, or switching firms (rare, but it sometimes happens) I would certainly consider using a GV number as a "master" number and push to the background the "office" number.  It is safer than giving out a mobile number on a signature block, which some of us do, but which presents some drawbacks and privacy issues.  While it may take a while to customize the product to your liking, the flexibility is something that I suspect will become very helpful very quickly.

If any readers have any experience withor opinions regarding GV, please post and give us the benefit of your advice.

Court Sets Aside Willful Infringement Finding in Centocor v. Abbott

Centocor v. Abbott Labs, 2:07cv139 (Oct. 1, 2009)

Judge: T. John Ward

Holding: Defendant's Motion for JMOL as to willful infringement GRANTED

Judge Ward issued a couple of orders in this case today, one denying denying several of the defendant's motions for new trial / motions for judgment as a matter of law, and this separate one granting Abbott's motion as to willful infringement.  The order details Centocor's reasons why the jury's finding that the new Seagate standard was met should be upheld, and Abbott's that it should not be, and concluded that the latter was the correct ruling:

"The Court finds that the issues of infringement and validity were hotly contested, close, and required an intensely factual inquiry. . . . The jury could have found for either party on the issues of validity and infringement in this case, and although that fact does not automatically immunize an accused infringer from a finding of willfulness, the record developed in this case shows that Abbott presented objectively reasonable and substantial defenses to infringement and validity.  The mere fact that the jury ultimately found for the plaintiffs on the issues of infringement and validity does not diminish the difficulty of the jury’s task, which must be viewed objectively.  Further, the fact that certain facts were not presented to a jury, such as the close issue of claim construction, does not preclude the court to consider them in its determination of, as a matter of law, whether the first prong of Seagate is met.  In this case, the issue of claim construction was close and Abbott’s proposed interpretation for the claims, although eventually not adopted, was reasonable and based upon the specification and prosecution history of the ‘775 patent. Thus, the Court takes the close issues of claim construction into consideration in its determination of whether Abbotts’ actions were “objectively reckless."

The Court finds that this case was close at all stages of the litigation and that Abbott’s defenses and legal arguments, including the close issue of claim construction, were reasonable, legitimate, and substantial. Even when all of the evidence in this case has been reviewed, there is no “legally sufficient evidentiary basis” for a reasonable jury to find as the jury did.  As a matter of law, an “objectively high likelihood of infringement of a valid patent” could not have been found under Seagate’s first prong by clear and convincing evidence.  Because the Court finds that the first prong of the willfulness inquiry is not met, the Court need not address the second prong of Seagate.

Thus, the court granted Defendants’ Motion for JMOL on the issue of willfulness, and directed the entry of judgment as a matter of law that Defendants did not willfully infringe the ‘775 patent.