Judge: Don Bush
Holding: Motion to Dismiss Granted in Part
Judge: Don Bush
Holding: Motion to Dismiss Granted in Part
Judge: Amos Mazzant
Holding: Motions for Partial Summary Judgment Granted
This is a construction bond case in which plaintiff sought relief on several payment and performance bonds, asserting that the defendants failed to indemnify them when the plaintiffs received claims and incurred losses on each of the bonds.
After reviewing the applicable standards, the Court granted the partial summary judgment in the plaintiff's favor (the "partial" was because the plaintiff did not seek summary judgment on one of the bonds), finding that it had established both liability and damages in its motion. The defendant won partial summary judgment on its argument that the homestead waiver language in the indemnity agreement was void under Texas law. As a result of the rulings, the Court found that the defendants had breached their indemnity obligations, and were jointly and severally liable to indemnify the plaintiffs in the amount of $1,262,596.69.
Immediately preceding the trial were multiple rulings by Magistrate Judge Nicole Mitchell on various pretrial motions, and orders by Judge Gilstrap on appeals of those rulings. The orders denied motions for summary judgment on invalidity, indefiniteness, noninfringement, patentable subject matter, willful infringement and indirect infringement.
A Marshall jury in Judge Rodney Gilstrap's court returned a verdict for plaintiff in Rembrandt v. Samsung last Friday. The jury found all three claims infringed, none shown to be invalid by clear and convincing evidence, and split the difference on damages between the two parties' experts at $15.7 million.
Professor Matt Dawson, affectionately known by generations of Baylor Law graduates as "Mad Dog", a towering figure in the Texas legal profession and a cherished member of the Baylor Law School family, passed away yesterday, February 17, 2015. He was 98 years of age.
A Baylor University and Baylor Law graduate, Matt was the director of Baylor Law’s top-ranked Practice Court program for 13 years.
Baylor Law School Dean Brad Toben had this to say about Matt to the Baylor Law community earlier today:
"Matt was one of the giants of our profession . . . and one of the greats of life. He was so proud of, and an inveterate cheerleader for, Baylor Law and all that Baylor Lawyers represent. He counted his years as Practice Court Professor as an apex in his long career as a trial lawyer.
Prof. Dawson was one of the early shining lights of the trial bar in Texas and was on everyone's list of greats in the bar. His practice in the courtroom was for decades a testimony to the extraordinary gifts of advocacy with which Matt was blessed. His career in the courtroom also was a testimony to the brilliance of our jury system when a talented lawyer is the steward and protector of it as an advocate.
Matt used his gifts throughout his life to serve others and was a zealous advocate for his clients, so often among the marginalized. I admired him deeply for who he was, how he lived his life, and for the example he set for all of us in the profession. This is a great loss for his family, for his friends, for our profession and for the legions who were touched by his life. The likes of him will not pass this way again.
Born in Waco on March 20, 1916, Matt's life was linked to Baylor University since birth. His father, J.M. Dawson, was the pastor of First Baptist Church in Waco for 32 years, a Baylor alumnus, distinguished author, and ardent advocate of religious liberty and the separation of church and state. In 1957, Baylor University established the J. M. Dawson Institute of Church-State Studies. Matt’s mother, Willy Turner Dawson, was a much sought after speaker across the country and worked to make sure young women attending Baylor had a suitable place to live. Dawson Residence Hall is named after her.
For a time, Matt and his siblings lived on Fifth Street in an area that became part of the Baylor University campus where Waco Hall stands today.
"I grew up on a corner of the campus, along with people like (former Watergate prosecutor) Leon Jaworski, and (famed attorneys) Gib Gayle (of Houston), and Clarence Guittard (of Dallas), all of whom lived within a few blocks," Prof. Dawson said in a 2006 interview. "What great people to share a home like Baylor."
J.M. Dawson and other community leaders initiated a movement to build Waco Hall as part of a successful attempt to keep the university in Waco. As a result, the Dawson family moved to the corner of Eighth Street and Speight Avenue. Matt and his four other siblings — brothers, Leighton and Joe, and sisters, Alice and Donna — grew up among the children of Baylor professors and the workers of a nearby cotton mill.
In an oral history conducted in 2010 for the Baylor University Institute for Oral History, Matt recalled his childhood in the 1920s. Matt said he would mow lawns for 10 cents each to earn money to go to the movies. He also described a raucous childhood that included frequent schoolyard brawls with classmates and hitchhiking with a group of friends to Galveston when he was just 15.
Life was much different in the Dawson household with his loving and endearingly eclectic parents.
"Let me portray them this way," Matt said in his oral history, "both my father and mother were not only dearly loved, but dearly respected; very, very much so. And on the other hand, they were unlike any other parents that you may have known in that they were very liberal with their children."
"It was a rather happy-go-lucky family all around, if I’d have to describe it," he added.
His parents were often away as they traveled the state and country speaking and preaching. When at home, however, Matt recalled the dinnertime debates in which the whole family would participate. Matt's father would choose the topic and assign sides. The future lawyer called those family debates his first introduction to advocacy. Matt always wanted to be a lawyer, even attending local trials when he was a boy.
Matt graduated from Waco High School in 1933 and promptly enrolled in Baylor University, where he was involved in debate and theater in preparation for becoming a trial lawyer. In 1938, he graduated from Baylor University with a Bachelor of Arts in English and Speech, and from Baylor Law School. He was 22. Matt also completed post-graduate work at what is now the University of Wisconsin-Madison. Matt’s older brother, Leighton, also graduated from Baylor Law School.
At Baylor, Matt met the man who would become his lifelong friend, Abner V. McCall. It was a friendship nurtured by their differences: the man with the lively family and sharp tongue complemented the orphan with the agile mind.
Before the two graduated from Baylor Law School, they were chosen by Baylor Law professor and Chief Justice of the Texas Supreme Court James P. Alexander to clerk for him.
After graduating from Baylor Law, the formidable duo literally hit the road, hitchhiking to Houston to look for work. The pair turned down two job offers because they would get little time in the courtroom, so they headed to Longview, a prosperous oil city in East Texas with a desperate need for lawyers.
"The lawyers there were overwhelmed and referred to us every old dog of a lawsuit that we were willing to take on, and which we later tried the fool out of, gaining invaluable experience even though we lost," Matt said. "We lost a hell of a lot of them!"
Matt’s law practice with McCall started dissolving when the latter returned to Baylor Law to begin teaching. It finally ended when Baylor Law School was closed for the duration of World War II and McCall joined the FBI when the military did not allow him to enlist due to physical reasons.
Matt continued practicing in Gregg County until he was persuaded to run for the county judgeship there in 1942. The young lawyer defeated a field of 12 more-seasoned candidates to win the Democratic primary, ensuring a win in the general election. His tenure as Gregg County Judge was tumultuous as he set about cleaning up corruption in county government and encountering the expected resistance.
Matt served as Gregg County Judge for almost two years until he joined the Navy in 1944 and was stationed in San Diego. By that time, Matt, now 28, had been married to his beloved wife, Princess Louise, for five years and had two children.
Because he was comparatively older than most of the recruits around him, Matt was made a company commander. During basic training he was assigned lifeguard duties and would spend hours hauling struggling fellow "boots" out of a training pool. After basic training, Matt was assigned hospital duties where he helped to care for men who were wounded in battle or injured in training exercises.
"A bad assignment that I had at times, that was really pitiful, were those boys who had broken their necks and backs — quadriplegics," Matt said. "And they would cry and their mothers would come. They knew they were going to die because there was no healing of that at that time, like there is today. They knew full well they didn’t have long."
Toward the end of the war, Matt was assigned to the Marine Corps to interview and to help transition men who had been fighting for years as they were released from service and going home.
"They entered the war as youngsters, because that’s what most of them were." Matt said. "Eighteen, 19-year-old boys right out of high school or in high school, and growing up in three or four years of their life in the military in a war. Their lives were not normal."
In 1946, Matt received an early discharge and was back home in Texas by Christmas. But life for him also had changed dramatically.
"I had no job. I had a wife with another child on the way and they replaced my position as judge (in Gregg County)," Matt said. "I was invited to join the law firm that my brother (Leighton) was in, and so I accepted the position."
The young family then started a new life in Corsicana, with Matt now working at the firm of Davis, Jester, Tyson & Dawson. Matt would stay at the firm working as a trial attorney from 1946 to 1971, when he joined the Baylor Law School faculty.
In those 25 years, Matt became renowned in Texas legal circles as a trial lawyer who was fierce, tenacious, and effective. He learned early that "getting" the jury was the key to winning a case and he excelled in that pursuit.
"Fortunately, I started practicing law at a time when there were still a lot of the old legendary, great trial lawyers still around," said Noley Bice (LLB '62), retired Senior General Counsel at Baylor University. "All of us who aspired to be litigators sought out their names and took every opportunity to watch them in action when we had the chance. These ‘greats’ were generally up in years and had become progressively better with the experience of numerous courtroom battles.
"Early on, I was alerted to this fellow from Corsicana who had a reputation for kicking the opposition around in several venues around the state," Bice continued. "With his reputation, I looked upon Mr. Dawson as one of the ‘elder’ statesmen. It was quite a surprise to me to learn that when I reached that conclusion, Matt was only about 45 years old. His approach to trials put him on the ‘Litigation Honor Roll’ earlier than most."
The tough-as-nails litigator who "left no stone unturned," Matt also was remarkably generous, Bice said. "He was quick to give credit to his co-counsel, claiming none for himself," Bice said. "Just as he could in stern fashion destroy his opposing counsel in court, he could be the most gracious person that one ever met. I know that a lot of folks from his PC class might not believe that, but working with him was a joy."
In 1971, after 35 years of trying lawsuits and learning lessons from his adversaries, legendary trial lawyer Matt assumed the mantle of law professor and director of the Practice Court program at Baylor Law School. His demand for excellence earned him the affectionate nickname "Mad Dog" among his students. Matt also was nationally renowned for the success of his mock trial teams, and held close the axiom, "[t]he true mark of a teacher is the students who surpass him." The success of his mock trial teams, which won two national competitions and nearly every regional competition in a period of 10 years, is a testament to his teaching.
Under Matt, the PC program added "mini-trials" that consisted of opening statements, examination of witnesses, and final arguments. The mini-trials became the model for the mock trials at the National Trial Competition, sponsored by the American College of Trial Lawyers. The mini-trials lasted up to six hours with as many as eight witnesses permitted.
"To this day, I have a vivid recollection of him coming into our mini-trial in the old law school (Morrison Hall), in the middle of the trial, to watch us try a case he had never seen before," said current Baylor Law Practice Court Director Jerry Powell (JD '77). "He listened for about two minutes, grasped immediately the nature of the case and the issues that were important, and began to school us on how to try the case. He took over the cross examination of the witness that I was struggling to examine, and I sat in wonder and awe. How did he know to do what he did? He was masterful. He truly inspired me to want to become a great cross-examiner like him."
As a result of Matt’s mini-trial competition innovation, Baylor Law awards the "Mad Dog" — an 18-inch bronze statuette of Matt — to the student winner of the Bob and Karen Wortham "Mad Dog" Practice Court competition, Judge Wortham being among the legion of admirers of Matt.
During his tenure as PC director, Matt also had every student create an appellate record following the trials and required the preparation of appellate briefs for the appeal.
Along with Powell, Baylor Law Prof. Jim Wren (JD '80), also a PC instructor, studied under Matt and was a member of the 1980 National Trial Competition team that brought home the championship.
"I grew up knowing Matt Dawson, and I specifically came to Baylor Law because I wanted to be trained by him," Wren said. "He was a hard-driving mentor. Once I survived Practice Court, I came to understand that he pushed hard because he cared deeply.
"Matt believed in winning, and he believed in relentless preparation to make that happen," Wren added. "I had the good fortune to work on cases with him after graduating from Baylor Law, and he definitely modeled what he taught."
Years after graduating from Baylor Law, Powell also worked side-by-side with Matt in the courtroom. "I remember being co-counsel with him on a case in El Paso," Powell said. "I watched him take the lead on a venue hearing, arguing the law to the court with great facility and a style that made you trust everything he said. They say that you may not remember what a great speaker says, but you never forget how he made you feel. I don’t remember a single argument that he made. But as I watched him in action that day I was so proud of him — proud that he had been my teacher."
After Matt retired from teaching in 1983, he resumed his profession as trial lawyer for another two decades. His long list of professional honors include such distinctions as Fellow of the American College of Trial Lawyers — the first inductee from a small Texas city; Outstanding 50-Year Lawyer, as named by the Texas Bar Foundation; one of Texas Lawyer's 100 Lawyer Legends of the 20th Century; and Texas Monthly's oldest Super Lawyer for 2005, 2006 and 2007.
With all he accomplished over the more than 65 years of his practice as a trial lawyer, Matt always has held that his greatest achievement and honor was as a teacher of law at his beloved Baylor Law School. Matt repeatedly talked about how important scholarship endowment is to the Law School because he saw a Baylor Law education as an opportunity that had to be available to those deserving the privilege even if they could not otherwise afford it.
In 2009, a life-sized bronze statue of Matt was unveiled at the Sheila and Walter Umphrey Law Center and stands watch outside a Practice Court classroom.
Matt was preceded in death by his wife of 60 years, Princess Louise. He is survived by five children and their spouses, Donna and Dr. Robert Fisher of Phoenix, Ariz.; Rebecca and Jon Brumley of Fort Worth; Mark Dawson of Waco; Carol Dawson of Austin; and John and Allie Dawson of Henderson. He also is survived by numerous grandchildren, great-grandchildren, relatives and dear friends.
I had Mad Dog for Practice Court. I will never forget that daunting experience. I can still remember . . . Yet, I believe I speak for all who had the privilege of learning from Matt in saying that we would not trade that opportunity . . . or the memories . . . for anything. Whether you’re in the courtroom or not, we all owe a debt of gratitude to this great man and great lawyer."
Sanctions orders are traditionally relatively rare in the Eastern District of Texas, in part because so many lawyers in the district are repeat players, and have a clear understanding what conduct Eastern District courts believe is and is not appropriate.
However, from time to time there are factual situations that generate sanctions orders that provide us all with some useful data points on what conduct is not proper.
How Not to Read a Calendar
For example, in a recent patent case in Marshall in which the defendant was represented solely by an out-of-state attorney, the court addressed a motion to compel on emails. The parties had agreed on search terms, but were not able to come to agreement on a date for production. The court declined to accept the representation that the party was "trying to get it as quickly as they possibly can," and pressed for a date certain. The party's counsel then offered two weeks, with a representation that it would try to get it before then if it could. Unfortunately the party didn't make that date, but instead produced several hundred thousand pages of documents approximately a month after the deadline.
"The most troubling aspect of this record," the Court observed was that counsel "continue to maintain that his clients complied with the court's order. When asked, point blank, 'and you still contend that you complied with this order?' he responded 'I do, Your Honor.' The court finds this lack of candor to be below the standard expected from officers of this court." (Emphasis mine). The order went on to state that the court believed that the party had a "fundamental misconception" about what it means to comply with an order to produce by documents by a certain date and to clear this up specifically rejected the position that a party can withhold from production any documents that hit a "privilege screen" composed of certain keywords designed to indicate which documents might be privileged, and then produce those documents after the deadline. Such privilege screens can be used to assist their review of documents, the Court observed, "but the law requires this review to be accomplished in time to produce all non-privileged documents by the deadline, and provide a privilege log listing the documents withheld by that deadline as well." Again, keep in mind that this was a case where the Court set an outer limit deadline - which was one that the producing party proposed, and never sought to have modified.
With respect to a remedy, the court declined to strike witnesses, and concluded that there did not appear to be a deliberate attempt to delay the production, but instead a failure to devote the additional resources necessary to comply or to properly confer with opposing counsel and seek leave of court to adjust the schedule for document production when it potentially became necessary. The court did, however, assess as a sanction all expenses, including reasonable attorneys fees, incurred by the plaintiff as a result of the need to file and argue the underlying motion to compel and motion for sanctions. The parties subsequently met and conferred on the relevant amount and reached agreement on $30,000.
"Complete good faith compliance with protective orders is essential to modern discovery practices"
In another patent case, the defendant asserted that plaintiff's counsel disclosed information protected by the amended protective order entered in the case three times in an unrecorded hearing at the Patent Trial and Appeal Board (PTAB). The court disagreed with respect to two of the three asserted improper disclosures, but did agree that there had been disclosure of information regarding the defendant's litigation budget and revenues, both of which were designated as confidential under the protective order entered by the court in the case. The Court found the disclosing that information to the PTAB panel violated its protective order, and was conduct subject to sanction.
With respect to the appropriate sanction, while the Court directed the plaintiff to join in a motion with the defendant to the PTA be requesting that the information be sealed, it did not consider that requirement to be a sanction, let alone one sufficient for deterrent purposes.
In determining an appropriate sanction, the Court found that plaintiff's counsel's conduct was far less egregious than conduct referenced in cases cited to the court, and concluded that defendant's counsel had failed to mitigate the breach. Accordingly, it denied the defendant's request for attorneys fees. However, the Court noted "the need to promote respect for, and meticulous observance of protective orders, to deter plaintiff from repeat offense, and to deter others from similar conduct" as important objectives, in addition to the factors that look to the actual injury to the aggrieved party and that party's efforts to mitigate damage.
"Complete good faith compliance with protective orders is essential to modern discovery practices," the Court wrote, "and counsel must temper their zeal and representing their clients with their overreaching duty as officers of the court. Given the amount at issue in this case, and the importance of scrupulous adherence to protective orders in intellectual property cases to promote the exchange of confidential and proprietary technical information, the court finds that a sanction of $2,500 is the least onerous sanction that is sufficient to remind counsel of this duty, deter future violations in the suit, and serve as an adequate general deterrent for similar conduct. A lesser sanction would not be sufficient to achieve these objectives."
Every so often it's appropriate to acknowledge the greatness of the late Jackie Gleason as Sheriff Buford T. Justice in the 1977 classic Smokey and the Bandit. (Even if they did get the law wrong on where geographically in relation to Texarkana beer can be purchased. Or so I've heard). If you haven't watched it lately, you need to. It's one for the ages.
Now that that's out of the way, I wanted to put in a plug for this year's TexasBarCLE 2015 Federal Court Practice seminar, which will be held in Dallas this year, at the usual location at Cityplace Events on May 15, 2015.
The course is good for approximately 6.75 hours, including 1.75 ethics hours expected. To register go here.
I will be speaking on trial procedure in federal court again this year, and am really looking forward to it. It is always a good day finding out about recent developments in practice in federal court, including new case law, practice pointers, and information you need to know about electronic filing.
Judge: Roy Payne
Holding: Defendants Motion for Partial Summary Judgment and Objection to the Admissibility of Expert Testimony Denied; Motions to Exclude Evidence of Testing Denied
Defendant Ford sought summary judgment as to the plaintiffs remaining claim for design defect, asserting that the plaintiff had no admissible expert testimony on the required element that there have been a "safer alternative design", because the plaintiff's expert purportedly left and "analytical gap" that is only bridged by the "ipse dixit" of the expert. (I miss products cases like this - I really do. These were fun motions to write and respond to). Finding that the issue of whether the plaintiff's expert's testing was sufficient was a disputed issue of fact the must be decided by the jury, or by the Courtafter trial, Judge Payne denied the motion.
Ford also sought to exclude the testimony of the plaintiff's forensic pathologist on the issue of whether a safer alternative design existed. Again, the court found that this issue went to the sufficiency of the expert's data, and not his methodology, and denied the motion.
The court's order also addressed two additional matters raised by defendant Ford's motions in limine.
The first sought to exclude all evidence of Insurance Institute for Highway safety crash testing of a 2001 Ford F-150 pickup truck as insufficiently similar to the vehicle at issue. "The critical issue on this motion," Judge Payne wrote, "is whether the admitted differences between the different vehicle platforms would so affect the test results as to make them impossible to reliably compare. Plaintiff has presented well-qualified experts who have employed seemingly appropriate methodology. This is a question of fact that cannot be resolved on this record. The issue will be put to the jury in the form of the question as to whether [plaintiff] has carried the burden of proof on the design defect." Accordingly, the motion was denied.
The second issue involved a similar question of whether the testing of a successor vehicle platform should be admitted. Ford challenged its admissibility as impermissible evidence of a subsequent remedial measure, despite the fact that the injury occurred seven years after the successor platform was introduced. The Court denied the motion, finding that Texas law required the plaintiff to show that a safer alternative design existed, and that the evidence was relevant to prove that the design at issue would have avoided or lessened the injury.
"Serious Skepticism" - what a court has about a party's position immediately before overruling it. Example: "The Court displayed serious skepticism when the party claimed it just had 'a couple more questions.'"
For more patent litigation dictionary entries, see here.
Judge Rodney Gilstrap
Holding: Motion to Transfer Venue Granted
Judge Gilstrap noted early in this opinion that the central issue regarding this transfer motion was a patent license agreement entered into between defendant Canon and a third-party, which was the plaintiff's predecessor in interest. Because the license agreement contained a forum selection clause, the court was required to answer a series of threshold questions regarding its validity and application, including whether the defendant had waived application of the forum selection clause.
The Court concluded that the clause had not been waived, and that under the framework set forth in the U. S. Supreme Court's recent Atlantic Marine case, Canon had shown that the transfer was warranted, and the plaintiff had not met its burden of establishing the transfer to the forum for which the parties bargained was unwarranted.
In so doing, the Court noted that the result that it reached was unique to the current case because the plaintiff both opposed the forum selection clause and raised the dispute that called into question the very essence of the contract, thus putting the facts of the dispute squarely within the scope of the license agreement. The result might have been very different, the Court observed, if it perceived that the party who asserted the forum selection clause was attempting to manufacture a contract dispute simply as a means to import a favorable form selection clause into the venue analysis. "The Court will look with serious skepticism on parties that assert that a forum-selection clause of an (otherwise ancillary) contract when the real dispute is clearly not wedded to the contract containing the forum-selection clause." Accordingly the defendant's motion to transfer venue was granted.