For many, November and December 2017 were a blur. In case you missed the Eastern District of Texas’ amended rules, we highlight a few below. The amended rules can be read in full here.
Local Rule CV-4 Complaint, Summons, and Return now calls for the use of the event Notice of Filing of Patent/Trademark Form (AO 120) or Notice of Filing of Copyright Form (AO 121). The intention of this change was to reduce “filing deficiencies” instead of docketing it as a separate event.
Local Rule CV-5 Service and Filing of Pleadings and Other Documents no longer requires the return of the completed summons or waiver of service in a civil case. The comments indicate that this change was made to not only to reduce the number of calls the clerk’s office receives from attorneys who want to electronically file their returns of summons, but also to make the filing of completed summons easier for attorneys.
Local Rule CV-5 Service and Filing of Pleadings and Other Documents addresses sealed documents.
“Except as otherwise provided by Local Rule CR-49, a party filing a document under seal must publicly file a version of that document with the confidential information redacted within two days, unless the entire document is confidential information.”
Per the court’s comments, because the Eastern district hasn’t required the filing of a public but redacted version of any sealed pleading, brief or motion, the docket sheets often contained mostly sealed documents, which obscured from public view.
We jump to Local Rule CV-7 Pleadings Allowed; Form of Motions and Other Documents and the time to file a response.
“A party opposing a motion has fourteen days (twenty-one days for summary judgment motions) from the date the motion was served in which to file a response and any supporting documents, after which the court will consider the submitted motion for decision.”
Per the comments, this change was made in response to the elimination of the three-day rule of FRCP 6(d) and attorneys’ feedback that response times for summary judgment motions was too short at 14 days.
Local Rule CV-83 Rules by District Courts; Judge’s Directives was amended to make the rules compliant with the Alternative Dispute Resolution Act. In short:
“Litigants in all civil actions shall consider the use of an alternative dispute resolution process at an appropriate stage in the litigation. This consideration shall include, but is not limited to, mediation …”
A final amendment addresses the matter of attorney discipline, in particular, disciplinary action initiated in other courts. Per the comments:
“The automatic disbarment component of the rule is amended to ensure consistency with the requirement that an attorney be afforded due process before suspension or disbarment.”
We’ll stay in the Eastern District a bit longer to for a refresh on the important venue case of TC Heartland, which will surely have an impact in 2018.
Last October, we posted a blog about a federal appeals court disagreeing with an Eastern District judge’s decision to rule against the defendant’s request for a change of venue, which he based on a single salesman working out of his home within the district on behalf of the Seattle-based company.
The appeals court referred to the Supreme Court’s residency requirement in its TC Heartland decision.
In December, University of Houston law professor Paul M. Janicke mulled over the predictions he made in early 2017 regarding TC Heartland.
When considering the future most popular venues for filing new patent cases post-TC Heartland, he omitted the Eastern district. To his surprise after reviewing June 1-December 1, 2017 stats, the Texas venue was not only in the top five, but second only to Delaware. Says Professor Janicke:
“I thought there were too few regular places of tech business in that district to support the now-tight venue requirements. It turns out in the six months since the Heartland decision Eastern Texas has been quite an active choice …”
He goes on to state that the legal issues around patent venue are far from completely resolved.
“We are living in an age when many large entities are converting from the corporate business form to LLC, largely for tax reasons. What is the proper venue for a patent suit against an LLC? Oddly, Heartland did not address that question.”
For the future, the professor does predict that there will be a reduction in patent suit filings across all venues.