The Federal Circuit and Advisory Mandamus on Improper Venue
In In re Google LLC, the Federal Circuit used mandamus to order that a case be dismissed or transferred due to improper venue. The district court had concluded that Google’s having cache servers (but no employees) within the Eastern District of Texas was enough for venue to be proper in a patent-infringement suit. The Federal Circuit disagreed. And it did so via mandamus. Mandamus is normally reserved for occasions when district courts clearly and obviously err or go well beyond their jurisdiction. Google was not such a case. It was instead an example of what’s often called “advisory” mandamus, where a court of appeals uses the writ to address an unresolved and important issue that could evade appellate review.
The Google litigation
The case involved a patent-infringement suit against Google that was filed in the Eastern District of Texas. The patent venue statute says that these suits can be brought “where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” The Supreme Court has held that, for purposes of patent-infringement suits, a domestic company resides only in its state of incorporation. So venue turned on whether Google has “a regular and established place of business” in the Eastern District.
The plaintiff argued that Google had such a place of business due to the presence of several Google cache servers located in the district. The servers were housed in facilities owned by local Internet service providers. Google cached locally popular content on those servers so that users could access that content more quickly. Users’ requests for that content needed to go only to the local servers, not Google’s central data-storage servers. That shorter physical distance resulted in lower latency and reduced bandwidth costs for Google. Google did not itself physically install or maintain the servers; local employees of the Internet service providers did.
Google moved to dismiss the complaint for improper venue. But the district court denied the motion, holding that the servers alone were enough for Google to have a regular and established place of business in the district. In doing so, the district court relied on its prior decision in Seven Networks, LLC v. Google LLC, which held that venue in a suit against Google was proper for the same reasons.
Google then filed a petition for a writ of mandamus with the Federal Circuit
Advisory mandamus on an unresolved venue issue
The Federal Circuit ultimately granted the petition and ordered that the case be dismissed or transferred. But the propriety of mandamus was not immediately obvious. One of the requirements for mandamus is that the right to the writ be clear and indisputable. That normally requires that the district court commit a plain or obvious error, as mandamus is not supposed to be a substitute for appeal. Indeed, at a recent oral argument, Justice Kagan suggested that mandamus was usually reserved for correcting obvious errors, not for resolving important issues.
But mandamus can also play a role in addressing difficult, unresolved issues. In Schlagenhauf v. Holder, the Supreme Court affirmed the issuance of a writ of mandamus to decide an issue of first impression. And in Mallard v. U.S. District Court, the Court endorsed the use of the writ to decide an issue on which the courts of appeals had split. These and other instances demonstrate the “advisory” use of mandamus, which does not require an obvious error.
The Federal Circuit had denied a petition for a writ of mandamus in the Seven Networks, LLC v. Google LLC litigation mentioned above. In denying that petition, Federal Circuit concluded that the venue issue was not “the kind of broad and fundamental legal questions relevant to § 1400(b) that [the Federal Circuit has] deemed appropriate for mandamus.” It also noted the lack of disagreement among the district courts on this venue issue. The Federal Circuit accordingly concluded that it would allow the issue to percolate.
The intervening months rendered mandamus appropriate. The Federal Circuit noted three developments that changed its view on the propriety of mandamus. First, several district courts had issued conflicting decisions on whether the presence of a server—but no employees—is sufficient for venue to be proper. Second, cases involving this venue issue would likely evade the normal appellate process. (The court didn’t say why exactly the issue would evade review, but I’m guessing the court thought the cases would settle.) And third, the Federal Circuit had allowed this issue to percolate in the district courts, such that the issue was developed and ripe for review. The Federal Circuit also noted the substantial expenses that would be incurred were appellate review delayed:
While not alone sufficient to justify mandamus, the substantial expense to the parties that would result from an erroneous district court decision confirms the inadequacy of appeal in this case.
On the merits of venue, the Federal Circuit held that the lack of an employee or agent in the Eastern District of Texas meant that Google did not have a regular and established place of business in the District. Venue was accordingly improper. For a more in-depth discussion of the venue issue, see Dennis Crouch’s post at Patently-O: Google Servers—Not Enough for Venue.
More on advisory mandamus
For more on advisory mandamus (in the Federal Circuit and elsewhere), two good resources are Paul Gugliuzza’s The New Federal Circuit Mandamus and Adam Steinman’s Reinventing Appellate Jurisdiction.
In re Google LLC, 2020 WL 728165 (Fed. Cir. Feb. 13, 2020), available at the Federal Circuit and Westlaw.
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
The Fifth and Federal Circuits cannot agree on where appeals of Walker Process claims belong. These claims allege that someone violated the Sherman Act by fraudulently obtaining a patent. The Federal Circuit—which has exclusive jurisdiction over claims arising under the patent laws—thinks that these cases do not arise under the patent laws. So it transfers […]
Continue reading....
Mandamus is supposedly an extraordinary remedy. But a new paper from Jonas Anderson, Paul Gugliuzza, and Jason Rantanen shows that grants of the writ have become somewhat ordinary in Federal Circuit. And those grants have largely addressed venue issues in patent cases filed in the Eastern and Western Districts of Texas. (I discussed a trio […]
Continue reading....
Kylie G. Calabrese has published a note in the Baylor Law Review titled Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan. Calabrese chronicles—and criticizes—last year’s Fifth Circuit decision in In re JP Morgan Chase & Co., in which the panel denied mandamus yet purported to issue a binding holding on […]
Continue reading....
The cumulative-finality doctrine provides that certain subsequent events can save a premature notice of appeal filed after certain district court decisions. As I detailed in a 2018 article, the doctrine cannot be stated with any greater precision because the courts of appeals are all over the map on when exactly notices can be saved. Three […]
Continue reading....
In In re Williams-Sonoma, Inc., a district court had ordered a defendant to produce a list of its customers so opposing counsel could identify a lead plaintiff to pursue a class action. A split panel of the Ninth Circuit concluded that this discovery order was clearly erroneous and warranted reversal via mandamus.
Continue reading....Recent Posts
In two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.
Continue reading....
In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not […]
Continue reading....
I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation. I had done something similar a few years ago when writing about the need to sanction defendants for […]
Continue reading....
Yesterday, I filed an amicus brief in support of the petitioner in Parrish v. United States, which is currently pending before the Supreme Court. The case asks if an appellant must file a new notice of appeal after the district court reopens the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). Both the […]
Continue reading....
Last month saw another rejection of pure Bivens appeals, an analysis of Perlman appeals in the grand-jury context, and a ruling on mandatory stays during a remand appeal. Plus an odd sovereign-immunity appeal, appeals without the express resolution of all claims, and much more.
Continue reading....