Case: 12-139    Document: 17     Page: 1   Filed: 12/21/2012




          NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
               __________________________

                IN RE FUSION-IO, INC.,
                       Petitioner.
               __________________________

               Miscellaneous Docket No. 139
               __________________________

On Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Texas in case no.
11-CV-0391, Judge Rodney Gilstrap.
               __________________________

                     ON PETITION
               __________________________

  Before NEWMAN, PROST and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.

                        ORDER

    Fusion-IO, Inc. seeks a petition for a writ of manda-
mus directing the United States District Court for the
Eastern District of Texas to transfer to the United States
District Court for the District of Utah. Solid State Stor-
age Solutions, Inc. opposes the petition.

    This petition arises out of a complaint brought by
Solid State Storage in the Eastern District of Texas,
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IN RE FUSION-IO, INC.                                     2

charging Fusion-IO and eight other defendants with
patent infringement. Fusion-IO moved to sever the
infringement claims against it and transfer those claims
to the District of Utah pursuant to 28 U.S.C. § 1404(a).
On September 17, 2012, the Eastern District of Texas
granted the motion insofar as severing the claims against
Fusion-IO, consolidated the action against Fusion-IO with
the originally-filed case for purposes of pre-trial proceed-
ings, and denied Fusion-IO’s motion to transfer without
prejudice to refiling the same motion in the first-filed
case.

    Fusion-IO moved for reconsideration, but that motion
was denied again without addressing the merits of the
motion for transfer. The court explained that its Septem-
ber 17, 2012 order was administrative in nature and that
it will address each motion to transfer venue, including
Fusion-IO’s motion, in a timely manner.

     Fusion-IO now seeks from us a writ of mandamus di-
recting the district court to transfer the case to the Dis-
trict of Utah. To warrant that relief, Fusion-IO must
show (1) that it has no other adequate alternative means
to attain the desired relief and (2) a “clear and indisput-
able” right to relief. Cheney v. U.S. Dist. Court, 542 U.S.
367, 380-81 (2004).

    Fusion-IO’s petition asks us, in effect, to bypass the
district court’s weighing of the facts and considerations
relevant to its transfer motion, which we decline to do.
We fully expect, however, for Fusion-IO to promptly
request transfer in the lead case along with a motion to
stay proceedings pending disposition of the transfer
motion, and for the district court to act on those motions
before proceeding to any motion on the merits of the
action. See In re Horseshoe Entm’t, 337 F.2d 429, 433 (5th
Cir. 2003) (“As indicated earlier, Horseshoe filed its
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3                                       IN RE FUSION-IO, INC.

motion to transfer timely and before it filed its answer
and in our view disposition of that motion should have
taken a top priority in the handling of this case[.]”);
McDonnell Douglas Corp. v. Polin, 429 F.2d 30, 30-31 (3d
Cir. 1970) (“[I]t is not proper to postpone consideration of
the application for transfer under § 1404(a) until discov-
ery on the merits is completed, since it is irrelevant to the
determination of the preliminary question of transfer.”).

      Accordingly,

      IT IS ORDERED THAT:

      The petition for a writ of mandamus is denied.

                                    FOR THE COURT


                                    /s/ Jan Horbaly
                                    Jan Horbaly
                                    Clerk




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