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`Plaintiffs,
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`Case No. 2:15-CV-00037-RWS-RSP
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Defendants.
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`ELBIT SYSTEMS LAND AND C4I LTD.,
`ELBIT SYSTEMS OF AMERICA, LLC,
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`v.
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`HUGHES NETWORK SYSTEMS, LLC,
`BLUETIDE COMMUNICATIONS, INC.,
`COUNTRY HOME INVESTMENTS, INC.,
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendants’ Motion to Sever and Transfer Claims Against Hughes
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`Network Systems, LLC and Stay Claims Against the Two Remaining Customer Defendants. Dkt.
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`130. Defendants’ motion is DENIED.
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`BACKGROUND
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`Elbit filed this action on January 21, 2015. Dkt. 1. About 16 months later, on May 24, 2016,
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`Hughes Network Systems, LLC (“Hughes”), BlueTide Communications, Inc. (“BlueTide”), and
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`Country Home Investments, Inc. (“Country Home”) electronically filed a “Sealed Document” via
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`the Court’s Case Management/Electronic Case Files (“ECF”) system, requesting that the Court
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`sever claims against Hughes, transfer those claims to the District of Maryland, and stay the
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`remaining claims against BlueTide and Country Home. See Dkt. 130. Defendants’ counsel did not
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`file the Sealed Document as a “motion” using the appropriate ECF event.1 Although the Clerk’s
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`1 The Court keeps track of pending motions by running motions reports through the ECF system,
`but a document that has not been electronically filed as a “motion” will not appear on a motions
`report or on the Court’s biannual Civil Justice Reform Act Report. It would not be practical for the
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`1
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`Case 2:15-cv-00037-RWS-RSP Document 394 Filed 06/23/17 Page 2 of 4 PageID #: 23947
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`Office ordinarily reviews filings as part of quality control, the Clerk’s Office did not identify
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`Defendants’ sealed document, and the document was never converted into a pending motion in
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`ECF. The case progressed, and Defendants’ counsel did not bring the motion to the Court’s
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`attention until June 2, 2017, more than a year after it was filed and only about two months from
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`trial.2
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`DISCUSSION
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`“The delay associated with transfer may be relevant in ‘rare and special circumstances,”
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`and the Fifth Circuit has found such circumstances present “where a ‘transfer [of] venue would
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`have cause yet another delay in [an already] protracted litigation.” In re Radmax, Ltd., 720 F.3d
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`285, 289 (5th Cir. 2013) (quoting In re Horseshoe Entm’t, 337 F.3d 429, 435 (5th Cir.2003) and
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`Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.1989)). While “garden-variety delay
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`associated with transfer is not to be taken into consideration when ruling on a § 1404(a) motion to
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`transfer,” id., the failure to seek transfer until 18 months after the movant knew of the facts
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`supporting transfer has been given significant consideration, see Peteet, 868 F.2d at 1436; see also
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`In re Wyeth, 406 F. App’x 475, 477 (Fed. Cir. 2010) (“Without reasonable promptness on the part
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`of the movant, a case proceeds, requiring the court to expend time and effort that might become
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`wasted upon transfer.”). Indeed, the purpose of § 1404(a) is “to facilitate just, convenient, efficient,
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`Court to periodically peruse each case on ECF to determine whether a motion might have been
`missed.
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`2 See Judge Richard G. Kopf, “What to do when your summary judgment motion goes missing in
`federal
`court,”
`Hercules
`and
`the
`Umpire
`(Sept.
`13,
`2013),
`https://herculesandtheumpire.com/2013/09/13/what-to-do-when-your-summary-judgment-
`motion-goes-missing-in-federal-court/ (last visited June 21, 2017, 2:00 PM) (“No federal judge
`that I know of would ever punish a litigant or lawyer because a concern about delay was
`respectfully voiced. The judge might be grumpy (read ‘embarrassed’), but you won’t be
`‘punished.’”).
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`2
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`Case 2:15-cv-00037-RWS-RSP Document 394 Filed 06/23/17 Page 3 of 4 PageID #: 23948
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`and less expensive determination.” In re Nintendo of Am., Inc., 756 F.3d 1363, 1365 (Fed. Cir.
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`2014).
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`With only a month left before trial begins, the Court confronts rare and special
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`circumstances, to say the least. Notwithstanding the fact that Defendants only recently informed
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`the Court about their pending transfer motion, Defendants waited some 16 months after the case
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`was filed to seek transfer. Few if any facts allegedly supporting transfer were discovered in the
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`course of litigation. There was no excuse to wait so long to seek transfer, all while “discovery was
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`conducted, protective orders were issued, individual disclosures were turned over, infringement
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`and invalidity contentions were exchanged, and an extensive amount of documents were
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`produced.” Wyeth, 406 at 477. Not to mention the numerous hearings and Orders from the Court
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`during this time. Whether or not Defendants’ 16 month delay alone is enough to warrant denial of
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`transfer, it carries significant weight. See Peteet, 868 F.2d at 1436.
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`To make matters worse, Defendants did not file the transfer motion in a way that would
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`bring the motion to the Court’s attention. The motion was filed as a “sealed document” amongst a
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`busy docket sheet that at the time had over 120 entries. While the Court readily admits some fault
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`in not identifying the document as a motion, the Court cannot be required to regularly review
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`docket sheets in individual cases to make sure that parties have filed their motions correctly.
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`Motions sometimes fall through the cracks, and when that happens, the movant inevitably calls or
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`emails the Court with a polite reminder. That did not happen in this case. Defendants’ reminder
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`did not come until more than a year after the motion was filed, with trial less than two months
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`away. This too carries significant weight. See Peteet, 868 F.2d at 1436.
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`Finally, to the extent the Court is required to consider the relevant public and private
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`interest factors under the rare circumstances of this case, the Court finds on the basis of the record
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`3
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`Case 2:15-cv-00037-RWS-RSP Document 394 Filed 06/23/17 Page 4 of 4 PageID #: 23949
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`that existed at the time Defendants’ motion was filed that Defendants’ have not shown the District
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`of Maryland to be clearly more convenient than this district. See In re Volkswagen AG, 371 F.3d
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`201, 203 (5th Cir. 2004) (“Volkswagen I”); In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th
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`Cir. 2008) (“Volkswagen II”).
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`CONCLUSION
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`Defendants only request the combined relief of severance, transfer, and stay. Under the
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`circumstances, transfer at this point is not warranted. Elbit has represented that it would agree to
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`dismiss the remaining two customer defendants. Hughes is indemnifying those defendants in any
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`event. Accordingly, there is no basis for severing and staying the customer suits in the absence of
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`a justifiable reason to transfer the case against Hughes to the District of Maryland. Accordingly,
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`Defendants’ motion to sever, transfer, and stay, Dkt. 130, is DENIED.
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`4
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