United States District Court, E.D. Texas, Marshall Division
ELBIT SYSTEMS LAND AND C4I LTD., ELBIT SYSTEMS OF AMERICA, LLC, Plaintiffs,
HUGHES NETWORK SYSTEMS, LLC, BLUETIDE COMMUNICATIONS, INC., COUNTRY HOME INVESTMENTS, INC., Defendants.
MEMORANDUM OPINION AND ORDER
PAYNE UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants' Motion to Sever and Transfer
Claims Against Hughes Network Systems, LLC and Stay Claims
Against the Two Remaining Customer Defendants. Dkt. 130.
Defendants' motion is DENIED.
filed this action on January 21, 2015. Dkt. 1. About 16
months later, on May 24, 2016, Hughes Network Systems, LLC
("Hughes"), BlueTide Communications, Inc.
("BlueTide"), and Country Home Investments, Inc.
("Country Home") electronically filed a
"Sealed Document" via the Court's Case
Management/Electronic Case Files ("ECF") system,
requesting that the Court sever claims against Hughes,
transfer those claims to the District of Maryland, and stay
the remaining claims against BlueTide and Country Home.
See Dkt. 130. Defendants' counsel did not file
the Sealed Document as a "motion" using the
appropriate ECF event. Although the Clerk's Office ordinarily
reviews filings as part of quality control, the Clerk's
Office did not identify Defendants' sealed document, and
the document was never converted into a pending motion in
ECF. The case progressed, and Defendants' counsel did not
bring the motion to the Court's attention until June 2,
2017, more than a year after it was filed and only about two
months from trial.
delay associated with transfer may be relevant in 'rare
and special circumstances, " and the Fifth Circuit has
found such circumstances present "where a 'transfer
[of] venue would have cause yet another delay in [an already]
protracted litigation." In re Radmax, Ltd., 720
F.3d 285, 289 (5th Cir. 2013) (quoting In re Horseshoe
Entm 't, 337 F.3d 429, 435 (5th Cir.2003) and
Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th
Cir.1989)). While "garden-variety delay associated with
transfer is not to be taken into consideration when ruling on
a § 1404(a) motion to transfer, " id, the
failure to seek transfer until 18 months after the movant
knew of the facts supporting transfer has been given
significant consideration, see Peteet, 868 F.2d at
1436; see also In re Wyeth, 406 F.App'x 475, 477
(Fed. Cir. 2010) ("Without reasonable promptness on the
part of the movant, a case proceeds, requiring the court to
expend time and effort that might become wasted upon
transfer."). Indeed, the purpose of § 1404(a) is
"to facilitate just, convenient, efficient, and less
expensive determination." In re Nintendo of Am.,
Inc., 756 F.3d 1363, 1365 (Fed. Cir. 2014).
only a month left before trial begins, the Court confronts
rare and special circumstances, to say the least.
Notwithstanding the fact that Defendants only recently
informed the Court about their pending transfer motion,
Defendants waited some 16 months after the case was filed to
seek transfer. Few if any facts allegedly supporting transfer
were discovered in the course of litigation. There was no
excuse to wait so long to seek transfer, all while
"discovery was conducted, protective orders were issued,
individual disclosures were turned over, infringement and
invalidity contentions were exchanged, and an extensive
amount of documents were produced." Wyeth, 406
at 477. Not to mention the numerous hearings and Orders from
the Court during this time. Whether or not Defendants' 16
month delay alone is enough to warrant denial of transfer, it
carries significant weight. See Peteet, 868 F.2d at
matters worse, Defendants did not file the transfer motion in
a way that would bring the motion to the Court's
attention. The motion was filed as a "sealed
document" amongst a busy docket sheet that at the time
had over 120 entries. While the Court readily admits some
fault in not identifying the document as a motion, the Court
cannot be required to regularly review docket sheets in
individual cases to make sure that parties have filed their
motions correctly. Motions sometimes fall through the cracks,
and when that happens, the movant inevitably calls or emails
the Court with a polite reminder. That did not happen in this
case. Defendants' reminder did not come until more than a
year after the motion was filed, with trial less than two
months away. This too carries significant weight. See
Peteet, 868 F.2d at 1436.
to the extent the Court is required to consider the relevant
public and private interest factors under the rare
circumstances of this case, the Court finds on the basis of
the record that existed at the time Defendants' motion
was filed that Defendants' have not shown the District of
Maryland to be clearly more convenient than this district.
See In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.
2004) ("Volkswagen I"); In re Volkswagen of
Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008)
only request the combined relief of severance, transfer, and
stay. Under the circumstances, transfer at this point is not
warranted. Elbit has represented that it would agree to
dismiss the remaining two customer defendants. Hughes is
indemnifying those defendants in any event. Accordingly,
there is no basis for severing and staying the customer suits
in the absence of a justifiable reason to transfer the case
against Hughes to the District of Maryland. Accordingly,
Defendants' motion to sever, transfer, and stay, Dkt.
130, is DENIED.
 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 Court to periodically peruse