Judge: William Bryson (Honorary Eastern District of Texas Trial Judge - 2012)
Holding: Motion for Reconsideration of Order Denying Transfer DENIED; Industry Publications and Stock Analyst Reports Held INADMISSIBLE
Judging by the six or seven motions for judgment as a matter of law that have been filed in the last 24 hours, I am guessing that Judge Bryson is about to conclude this trial across the street, so I am clearing the decks of his recent orders that I wanted to post on. As an aside, I was one of the counsel in Judge Bryson's last batch of Marshall cases year before last, and always look forward to his orders because they bring an appellate judge's perspective to recurring issues at the trial court level. It certainly made the pretrial conference before Judge Bryson a lot of fun, because he asks different questions, and has a different perspective on common issues.
Motion for Reconsideration of Order Denying Transfer
After this case was reassigned to Judge Bryson, the defendant filed a motion for reconsideration of the Court's prior order denying the defendants motion to transfer venue to the Eastern District of Pennsylvania as well as supplements to approximately half a dozen pending motions. The motion to reconsider was allegedly predicated on a decision of U.S. Supreme Court, Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, No. 12-929 (U.S. Dec. 3, 2013), which held that in an action arising under a contract, the forum selection clause in that contract may be enforced by motion to transfer under section 1404, and that when such a clause is applicable, it should be given controlling weight in all but the most exceptional cases. The issue came up because the case involved forum selection clauses in some nondisclosure agreements between the parties.
Judge Bryson held that the Supreme Court's recent decision did not affect the grounds on which the court previously denied the motion to transfer because there was no governing forum selection clause at issue in this case. "Globus relies on the assertion of counsel, unsupported by evidence, that Globus’s nondisclosure agreements all contain forum-selection clauses," Judge Bryson wrote. "The Court is not prepared to transfer this case, at this late date in the proceedings, based on a supposition supported only by counsel’s assertion of what the June 2007 agreement must have contained."
Judge Bryson also denied the motion for reconsideration on the additional ground of untimeliness – not because the defendants counsel failed to file the motion promptly after the Supreme Court's ruling in Atlantic Marine Construction, but because the motion was based on an argument with respect to one of the agreements that was made possible by a change in the defendant's position as to the existence of that agreement, and an argument as to another agreement that was raised and rejected in the original order denying transfer in November 2012. The Court held that the Supreme Court's decision had no material effect on either of these issues, thus failure to seek reconsideration of the denial of the original transfer order promptly after its entry made the current motion untimely.
Industry Publications and Stock Analyst Reports Held Inadmissible Under FRE 803(17)
Here's a little lagniappe.
It seems that in at least one of his cases each docket, Judge Bryson runs into a evidentiary issue that he determines requires extensive analysis in a written opinion. In this case, the Court took under submission the issue of whether certain industry publications and stock analyst reports were admissible under the hearsay exception for "market reports and similar commercial publications" in Fed. R. Evid. 803(17). The court eventually concluded that the proffered exhibits did not fall within the scope of rule 803(17), but without prejudice to the plaintiff's urging the admission of the exhibits on other grounds, or offering redacted versions of the exhibits. If you're looking for a good summary of the law under this section, this is the place to look - docket no. 210 in 2:12cv147-WCB.