Tuesday, June 16, 2009

Court with First-Filed Case Should not Transfer Venue Until Court with Second-Filed Case Rules on Pending Venue Motion

The court sustained defendants' objections to the magistrate's order recommending that this action be transferred to a forum where a second-filed case involving the same patents was pending. "[I]f the second-filed court finds a 'likelihood of substantial overlap,' the second-filed court should transfer its case to the first-filed court. . . . Because the [second-filed] action has not matured to a final ruling on the venue transfer motion now pending there, [that] court has not yet made a final determination of whether a likelihood of substantial overlap exists between the [two actions]. The [other] court should have an opportunity to decide this issue independent of any action of this Court regarding venue. . . . Having not been presented with a [formal] motion to transfer [this case] to the [other forum], this Court sustains Defendants’ objections as to the portion of the . . . Report and Recommendation that recommends transferring [this] action."

Information Protection and Authentication of Texas, LLC v. Symantec Corp., 2-08-cv-00484
(TXED June 9, 2009, Order) (Folsom, J.)

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