Case: 20-113   Document: 30     Page: 1    Filed: 03/17/2020




          NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                In re: SUPERCELL OY,
                        Petitioner
                 ______________________

                        2020-113
                 ______________________

    On Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Texas in Nos.
2:19-cv-00070-JRG-RSP, 2:19-cv-00071-JRG-RSP, and
2:19-cv-00072-JRG-RSP, Judge J. Rodney Gilstrap.
                  ______________________

                     ON PETITION
                 ______________________

     Before MOORE, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
                       ORDER
     Supercell Oy petitions for a writ of mandamus direct-
ing the United States District Court for the Eastern Dis-
trict of Texas to transfer these cases to the United States
District Court for the Northern District of California.
GREE, Inc. opposes the petition. Supercell replies.
                      BACKGROUND
    In February 2019, Supercell and GREE entered into a
settlement agreement resolving various patent litigations.
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2                                         IN RE: SUPERCELL OY




That agreement included a standstill provision under
which each party agreed not to commence patent litigation
until February 28, 2019. The agreement also contained a
governing law and forum selection clause that provided
that “all matters arising out of or relating to this Agree-
ment, are governed by, and construed in accordance with,
the laws of the State of California,” and “[t]he sole jurisdic-
tion and venue for any action for breach of or to enforce this
Agreement shall be the United States District Court for the
Northern District of California.” 1
    Shortly after midnight on February 28, 2019 central
time, GREE submitted into the filing system of the Eastern
District of Texas the three underlying complaints alleging
that Supercell infringed its patents. Supercell then imme-
diately sued GREE in the Northern District of California,
alleging that GREE breached the settlement agreement by
bringing the Texas actions and sought declaratory judg-
ments of noninfringement and invalidity for the same pa-
tents. Supercell moved for a temporary restraining order



    1 The court notes that both parties have marked as con-
fidential provisions of the settlement agreement and dis-
cussions of those provisions that appear verbatim in the
district court’s public opinion. See GREE, Inc. v. Supercell
Oy, No. 2:19-cv-00071-JRG-RSP, 2019 WL 5596504, at *1–
*5 (E.D. Tex. Oct. 30, 2019). The court notes that even
words such as “agreement” and “provision” standing alone
have been marked confidential for no apparent reason. The
court advises the parties that the improper use of confiden-
tiality designations “ignores the requirements of public ac-
cess, deprives the public of necessary information, and
hampers this court’s consideration and opinion writing”
and could result in sanctions. See In re Violation of Rule
28(d), 635 F.3d 1352, 1360 (Fed. Cir. 2011).
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IN RE: SUPERCELL OY                                                3



in California to prevent GREE from pursuing the Texas ac-
tions. The California court denied the motion and stayed
that action, noting that “principles of comity among federal
courts and judicial efficiency weigh heavily in favor of re-
solving all of the parties’ disputes in Texas.” Supercell OY
v. GREE, Inc., No. 3:19-CV-01106, ECF No. 32 (N.D. Cal.
May 31, 2019).
    Supercell then moved the Eastern District of Texas to
transfer the Texas actions to the Northern District of Cali-
fornia, arguing that GREE’s alleged breach of the settle-
ment agreement should be remedied by transfer, or
alternatively, that transfer is warranted under 28 U.S.C. §
1404(a). The district court rejected both arguments.
Supercell now seeks a writ of mandamus to direct transfer
to the Northern District of California.
                         DISCUSSION
     A party seeking a writ bears the burden of proving that,
among other things, it has a clear and indisputable legal
right to the relief it seeks. See Cheney v. U.S. Dist. Court
for the Dist. of Columbia, 542 U.S. 367, 380–81 (2004). This
demanding standard is not satisfied here.
     Supercell first challenges the district court’s analysis of
the first-to-file rule. That rule “generally favors pursuing
only the first-filed action when multiple lawsuits involving
the same claims are filed in different jurisdictions.” Merial
Ltd. v. Cipla Ltd., 681 F.3d 1283, 1299 (Fed. Cir. 2012) (ci-
tation omitted). “Application of the first-to-file rule is gen-
erally a matter for a district court’s discretion, exercised
within governing legal constraints.” Futurewei Techs., Inc.
v. Acacia Research Corp., 737 F.3d 704, 708 (Fed. Cir. 2013)
(citation omitted).
     Supercell does not dispute that its suit was not actually
filed first. Supercell instead argues that its California ac-
tion was the only properly filed suit under the standstill
provision. Supercell contends that the district court clearly
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4                                        IN RE: SUPERCELL OY




erred in (1) assessing when these suits were commenced
under the standstill provision at the time GREE uploaded
them into the system rather than when GREE logged into
the system, and (2) not applying Pacific time to determine
when the suit was actually filed. Upon correction of either
district court error, Supercell contends, these suits were
filed on February 27th, not the 28th, in violation of the par-
ties’ standstill agreement. We, however, disagree with
Supercell on both points.
    We see no clear error in the district court’s assessment
of when these suits were commenced. Looking to its local
rules, which provide that a “document filed electronically
is deemed filed at the ‘entered on’ date and time stated on
the Notice of Electronic Filing,” GREE, 2019 WL 5596504,
at *4 (emphasis added) (quoting E.D. Tex. Local Rule CV-
5(a)(3)(B)), the district court concluded that the actions
commenced after the standstill period on February 28,
2019 because the Notices of Electronic Filing for the three
complaints state that they were “entered” on that day.
Supercell points to no authority, California or otherwise,
that would require the Texas court to use a different ap-
proach to determine whether GREE had commenced these
suits before the end of the standstill.
     We also see no clear abuse in the court’s determination
of when these actions were filed. Supercell argues that the
district court was required to apply Pacific time. But, as
the court correctly noted, the settlement agreement is si-
lent as to what time zone should apply. In the absence of
any such contractual provision, we cannot say that it was
a clear abuse of discretion for the district court to make the
first-to-file determination without regard to time zone dif-
ferences. See Formaldehyde Institute, Inc. v. U.S. Con-
sumer Prod. Safety Comm., 681 F.2d 255, 262 (5th Cir.
1982) (taking the same approach). We have been shown no
California authority that would require the district court
to depart from that approach. The California law and re-
lated California case law that Supercell points to simply
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IN RE: SUPERCELL OY                                             5



suggest that “[t]he standard time within the state” is “Pa-
cific standard time.” Cal. Gov’t Code § 6808(a) (emphasis
added); Miracle Auto Ctr. v. Superior Court, 68 Cal. App.
4th 818, 820 (1998). That is not a basis to conclude the
district court clearly erred.
    Supercell next challenges whether the agreement’s fo-
rum selection clause barred GREE’s patent infringement
actions in Texas. The district court rejected this argument
because the clause “applies only to actions for breach or en-
forcement of the Settlement Agreement, not all disputes
between the parties or even all disputes relating to the Set-
tlement Agreement.” GREE, 2019 WL 5596504, at *6. We
see no clear error in the district court’s assessment of the
scope of the forum selection clause. Supercell argues that
the district court “erred by failing to consider Supercell’s
defenses when applying the Agreement’s forum selection
clause.” But the only defense that Supercell points to
merely says “GREE is barred or limited from recovering
damages from Supercell, in whole or in part, under princi-
ples of equity, including laches, waiver, estoppel and/or un-
clean hands.” 2 That defense, expressly considered by the
district court, does not mention, let alone directly impli-
cate, the agreement.
    Separate from the settlement agreement, Supercell ar-
gues that the usual transfer factors under section 1404(a)
warrant transfer. Under applicable Fifth Circuit law, we
review those determinations only to see if there was such a
clear abuse of discretion that refusing transfer amounted


    2 The court notes that Supercell added a breach of con-
tract defense only after the district court denied its motion
to transfer. See Answer to First Am. Compl. at 8, GREE,
No. 2:19-cv-00071-JRG-RSP (Dec. 24, 2019), ECF No. 98.
Even considering the amended answer, we cannot say that
this case would fall within the limited scope of the parties’
forum selection clause.
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6                                           IN RE: SUPERCELL OY




to a patently erroneous result. See In re TS Tech USA
Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). Supercell has
not made such a showing. The district court reviewed all
the factors on the record before it. The district court here
reasonably concluded that trial in California would impose
a similar degree of inconvenience given both parties were
foreign corporations. The district court also considered and
rejected the relevance of Supercell’s subsidiary employee
and expert witness in California, and we are not prepared
to say its conclusions were clearly incorrect. Finally, while
Supercell reiterates its argument that transfer would allow
one court to resolve all of these related actions, as the dis-
trict court correctly explained here, “this argument has al-
ready been repudiated by the California Court itself.”
      Accordingly,
      IT IS ORDERED THAT:
      (1) The petition is denied.
    (2) The motions to exceed the confidential word limit
are denied as moot.
                                    FOR THE COURT

    March 17, 2020                  /s/ Peter R. Marksteiner
        Date                        Peter R. Marksteiner
                                    Clerk of Court
s35
