NOTE: This order is nonprecedential

United States Court of Appeals
for the Federal Circuit

IN RE CAPITAL ONE FINANCIAL CORPORATION,
CAPITAL ONE, N.A., CAPITAL ONE BANK (USA),
N.A., PROSPERITY BANCSHARES, INC.,
PROSPERITY BANK, PATRIOT BANCSHARES,
INC., PATRIOT BANK, LEGACY TEXAS GROUP,
INC., AND LEGACY TEXAS BANK,
Petitioners.

Miscellaneous Docket No. 123

On Petition for Writ of Mandarnus to the United States
District Court for the Eastern District of Texas in case no.
11-CV-0092, Magistrate Judge John D. Love.

ON PETITION

Before PROST, MAYER and REYNA, Circuit Juclges.
PER CURIAM.

ORDER

The nine petitioners, defendants in a patent in-
fringernent action, seek a writ of mandamus to direct the
United States District Court for the Eastern District of

IN RE CAPITAL ONE FINANCIAL CORP. 2

Texas to vacate its order denying the petitioners’ motion
to transfer venue, and to direct the court to transfer the
case to the United States District Court for the Southern
District of Texas. Capital One Financial Corporation,
Capital One, N.A., and Capital One Bank (USA), N.A.
("Capital One") also seek a writ of mandamus to direct the
district court to sever the claims and counterclaims
against Capital One and to transfer them to the United
States District Court for the Eastern District of Virginia.
The plaintiff in the infringement action, DataTreasury
Corporation, opposes.

ln its order denying the petitioners’ motion to trans-
fer, the district court noted that some of the defendants
are based in the Eastern District of Texas, that Data-
Treasury is also headquartered in the Eastern District of
Texas, and that a large amount of relevant documents
and electronic data are located in or near the Eastern
District of Texas. Although the petitioners identified
several potential witnesses who reside in Houston, Texas,
where the transferee court is located, the court concluded
that the convenience of the witnesses did not weigh
heavily in favor of transfer in light of the presence of some
witnesses in or near the Eastern District of Texas. The
cofurt recognized the fact that the Southern District of
Texas had absolute subpoena power over some witnesses
favored transfer. However, because the Eastern District
of Texas had the authority to compel witnesses in the
state of Texas to attend trial, the court found this factor
only slightly weighed in favor of transfer. The court
added that only the Eastern District of Texas participates
in the Patent Pilot Program, which slightly favored
transfer. The court therefore concluded that the petition-
ers had not met their burden of demonstrating that the
Southern District of Texas was clearly more convenient
than the Eastern District of Texas for trial, and it denied
the motion to transfer. With regard to Capital One’s

3 IN RE CAPITAL ONE FINANCIAL CORP.

motion to sever and transfer, the district court denied it
without prejudice to reconsidering the issue of severance
as the case progressed.

Mandamus is an extraordinary remedy, available "to
correct a clear abuse of discretion or usurpation of judicial
power.” In re Nintendo Co., Ltcl., 589 F.3d 1194, 1197
(Fed. Cir. 2009). Although this court, applying Fifth
Circuit law in cases arising from district courts in that
circuit, has held that mandamus may be used to correct a
patently erroneous denial of transfer, we have made clear
that the standard for obtaining such relief is an exacting
one, requiring the petitioner to establish that the district
court’s decision amounted to a failure to meaningfully
consider the merits of the transfer motion. See id. at
1196-97. We see nothing in the petition justifying such
extraordinary relief in this case.

The petitioners’ arguments that the Southern District
of Texas is more convenient in regard to the relevant
sources of proof and witnesses have already been consid-
ered and rejected by the district court. The court ex-
plained that while transfer could make trial more
convenient for some of the parties and witnesses residing
closer to the transferee court, granting the motion would
make it more inconvenient for DataTreasury and some
witnesses who reside in the Eastern District of Texas.
Given that some of the defendants and DataTreasury are
based within the Eastern District of Texas and some
witnesses and documents have been identified there, we
are not prepared to say that the district court clearly
abused its discretion.

With respect to Capital One’s motion to sever and
transfer, we note that in In re EMC Corporation, 677 F.3d

1351 (Fed. Cir. 2012), this court recently set forth the
standard for assessing a motion to sever under Federal

IN RE CAPITAL ONE FINANCIAL CORP. 4

Rule of Civil Procedure 21(a). We deem it the better
course for Capital One to move the trial court for recon-
sideration of its decision and for the district court to
promptly consider the motion in full in light of EMC.

Accordingly,
I'r ls ORDERED THAT:

z The petition for writs of mandamus is denied.

FOR THE COURT
AUG l 0 2012 /s/ J an Horbaly
Date J an Horbaly
Clerk

cc: John G. Flaim, Esq.

Lance Lee, Esq.

Richard P. Stitt, Esq.

Karl A. Rupp, Esq.

Clerk, United States District Court for the Eastern
District of Texas

s2p3

FILED
oF APPEALS FOB
U“S”nc+?eiilil)sn»iiczncun

AUG 10 2012

JAN HUBBALY
C|.ERK

