In this episode: Rick Frenkel and Cisco try to argue a lawsuit into East Texas; Frenkel says Johnny Ward Jr. should pay his legal fees or stop suing him; and if you want to win a venue dispute, don't miss those Christmas parties.
Previously, I explained how Rick Frenkel was sued twice for defamation shortly after revealing he was the author of the now-shuttered Patent Troll Tracker blog. One of those plaintiffs is Johnny Ward, Jr., a Longview, Texas lawyer who's popular as local counsel in E.D. Texas patent lawsuits; he's also the son of federal judge T. John Ward, the judge largely responsible for building up the Eastern District as the nation's most popular (or infamous) patent venue. The other lawsuit was brought by Eric Albritton, another Longview lawyer who has partnered with Ward Jr. on many cases, including ESN v. Cisco, the patent litigation that is the subject of the allegedly defamatory PTT posts.
Cisco got the Albritton complaint removed from the Gregg County state court where it was filed to federal court—the Eastern District of Texas, Tyler division. Fearing the same would happen to his lawsuit, Ward Jr. quickly dropped his own state-court claim in Gregg County and re-filed in a federal court just over the state line, in Texarkana, Arkansas.
Frenkel asked for Ward's case against him to be dismissed or be transferred to E.D. Texas, where Ward's office is located and where the Albritton complaint will be heard. Ward Jr. quickly complied; he moved to dismiss Frenkel from the complaint just a few hours after Frenkel filed his request. But he's pushing ahead with a defamation lawsuit against Frenkel's employer, San Jose-based Cisco Systems.
Then Frenkel moved for Ward to pay his attorney's fees, noting that "this is the second time that Ward has sued Frenkel and the second time he has nonsuited after Frenkel has been put to considerable expense." Frenkel offered to forego those fees if Ward Jr. agreed to dismiss with prejudice, i.e. agree not sue Frenkel again on the same grounds.
Ward doesn't have any intention of writing that check. He responded:
Meanwhile, the venue dispute between Ward and Cisco continues, with a couple bizarre twists. Ward wants to keep the case in Texarkana, Arkansas; he argues that because he, and the case, are closely tied to the E.D. Texas bench, Cisco might be able to transfer a second time, out of E.D. Texas, and into a district that could be "highly inconvenient" for Ward. But Cisco calls the recusal issue a "straw man" and says that
judges in the Tyler division are perfectly capable of giving the case
an impartial hearing. (Ward Sr. is a judge in the Marshall division,
not Tyler.)
Ward Jr.'s brief opposing transfer extols the virtues of the "unique community" of Texarkana, a town where the Texas-Arkansas state line runs through the middle of town. (The federal courts of Texarkana, Texas and Texarkana, Arkansas actually share a wall.) He even includes a declaration from the president of the Texarkana Bar Association, R. Gary Nutter, about how the state line is no big deal in the close-knit Texarkana legal community. "For example, last year, the Bar Christmas Party was held at my house in Texarkana, Arkansas," wrote Nutter. "Our monthly Bar lunches are typically held at Northridge Country Club in Texarkana, Texas." But just eight days later, Cisco's attorney filed its own pro-transfer reply, complete with its very own declaration by R. Gary Nutter! "John Ward Jr. is not a member of the Texarkana Bar Association," wrote Nutter. "John Ward, Jr. did not attend the Bar Christmas Party at my home last year." For shame. (Is Nutter confused? Chastened? Switching sides? Or just incredibly helpful to all sides in Texarkana venue disputes?)
But Ward Jr.'s best argument against transfer is the one backed up with a highlighted chart of federal court statistics: the E.D. Texas docket is just too slow because it's so crowded with pending lawsuits. (Hey, who filled up the docket with all these patent lawsuits, anyway? Oh, right…)
Documents from Ward v. Cisco Systems, Inc. et al. (08-cv-04022-JLH, W.D. Arkansas):
Cisco got the Albritton complaint removed from the Gregg County state court where it was filed to federal court—the Eastern District of Texas, Tyler division. Fearing the same would happen to his lawsuit, Ward Jr. quickly dropped his own state-court claim in Gregg County and re-filed in a federal court just over the state line, in Texarkana, Arkansas.
Frenkel asked for Ward's case against him to be dismissed or be transferred to E.D. Texas, where Ward's office is located and where the Albritton complaint will be heard. Ward Jr. quickly complied; he moved to dismiss Frenkel from the complaint just a few hours after Frenkel filed his request. But he's pushing ahead with a defamation lawsuit against Frenkel's employer, San Jose-based Cisco Systems.
Then Frenkel moved for Ward to pay his attorney's fees, noting that "this is the second time that Ward has sued Frenkel and the second time he has nonsuited after Frenkel has been put to considerable expense." Frenkel offered to forego those fees if Ward Jr. agreed to dismiss with prejudice, i.e. agree not sue Frenkel again on the same grounds.
Ward doesn't have any intention of writing that check. He responded:
Given the incredibly offense nature of Frenkel’s comments, Ward could have held a grudge and insisted that Frenkel remain a named defendant in this case. He did not. Instead, as soon as Cisco admitted agency, Ward dismissed Frenkel from this case… Ward’s actions demonstrate the type of good faith conduct that all litigants should strive to achieve.Because of the dispute over attorneys' fees, Frenkel is still technically a party to the case.
Ward Jr.'s brief opposing transfer extols the virtues of the "unique community" of Texarkana, a town where the Texas-Arkansas state line runs through the middle of town. (The federal courts of Texarkana, Texas and Texarkana, Arkansas actually share a wall.) He even includes a declaration from the president of the Texarkana Bar Association, R. Gary Nutter, about how the state line is no big deal in the close-knit Texarkana legal community. "For example, last year, the Bar Christmas Party was held at my house in Texarkana, Arkansas," wrote Nutter. "Our monthly Bar lunches are typically held at Northridge Country Club in Texarkana, Texas." But just eight days later, Cisco's attorney filed its own pro-transfer reply, complete with its very own declaration by R. Gary Nutter! "John Ward Jr. is not a member of the Texarkana Bar Association," wrote Nutter. "John Ward, Jr. did not attend the Bar Christmas Party at my home last year." For shame. (Is Nutter confused? Chastened? Switching sides? Or just incredibly helpful to all sides in Texarkana venue disputes?)
But Ward Jr.'s best argument against transfer is the one backed up with a highlighted chart of federal court statistics: the E.D. Texas docket is just too slow because it's so crowded with pending lawsuits. (Hey, who filled up the docket with all these patent lawsuits, anyway? Oh, right…)
Documents from Ward v. Cisco Systems, Inc. et al. (08-cv-04022-JLH, W.D. Arkansas):
- Ward Jr. complaint w/ PTT printout exhibit
- Cisco Systems motion to Dismiss or Transfer
- Frenkel's motion to dismiss
- Ward Jr. opposition to Cisco's Motion
- Frenkel's response and request for attorney's fees
- Ward Jr. reply to Frenkel's fee request
- Cisco Systems reply supporting transfer, 5/8/08
- Ward Jr. sur-reply opposing transfer, 5/15/08
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