124432717.1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

WACO DIVISION

Case No.: 6:20-cv-0303-ADA

PRECIS GROUP LLC,

Plaintiff,

v.

TRACFONE WIRELESS, INC.,

Defendant.

_____________________________________/

DEFENDANT TRACFONE’S OPPOSED MOTION FOR DECISION ON

ITS PENDING VENUE MOTION PRIOR TO THE MARKMAN HEARING

Defendant TracFone Wireless, Inc. (“TracFone”) moves for a decision on its 

pending Motion to Dismiss For Improper Venue or to Transfer to the Southern District 

of Florida (the “Venue Motion”) [ECF No.12] prior to the Markman hearing, which is 

scheduled to be conducted via Zoom videoconference on December 29, 2020. [ECF No. 36].

Plaintiff opposes this motion, with the position that it “think[s] the Court should 

take up the motion to transfer as it sees fit.”

TracFone filed the Venue Motion on June 22, 2020 and it has been is fully briefed 

and ready for decision since July 14, 2020. [ECF No. 17]. TracFone also moved to stay 

the case pending resolution of the Venue Motion. [ECF No. 25] and [ECF No. 27]. 

TracFone also noted its position that the Venue Motion should be resolved before the 

Markman proceeding in its initial Markman brief. [ECF No. 29, p. 1, fn. 2].

The Federal Circuit has repeatedly instructed that resolution of a venue motion 

should take priority over substantive portions of the case. In re Nintendo Co., 544 F. 

App’x 934, 941 (Fed. Cir. 2013) (“a trial court must first address whether it is a proper

and convenient venue before addressing any substantive portion of the case”) (emphasis 

added) (citing In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir.2003) (“[The] motion [to 

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transfer] should have taken a top priority in the handling of this case by the...District 

Court.”) (bracketed text and ellipsis in original); In re EMC Corp., 501 F. App’x 973, 975 

(Fed. Cir. 2013) (acknowledging the “importance of addressing motions to transfer at the 

outset of litigation”).

And just last month, in a published opinion the Federal Circuit held that 

“[a]lthough district courts have discretion as to how to handle their dockets, once a party 

files a transfer motion, disposing of that motion should unquestionably take top priority.” 

In re Apple Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020) (emphasis added) (citing In re 

Nintendo and In re EMC); accord Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291 (5th Cir. 

1994) (affirming the district court’s decision to deny merits-related discovery pending 

ruling on a motion for change of venue); Klein v. Silversea Cruises, Ltd., 2014 WL 

7174299, at *2 (N.D. Tex. Dec. 16, 2014) (Horan, J.) (citing Enplanar and staying 

consideration of merits aspects of case pending resolution of venue challenge.).

TracFone therefore respectfully requests that the decision on the venue motion be 

issued prior to addressing the Markman aspect of the case.

Dated: December 21, 2020 By: s/ Aaron S. Weiss

Aaron S. Weiss (FL Bar #48813)

Email: aweiss@carltonfields.com

Carlton Fields, P.A

100 S.E. Second Street, Ste. 4200

Miami, Florida 33131

T: 305.530.0050 / F: 305.530.0055

Ethan Horwitz (admitted pro hac vice)

Email: ehorwitz@carltonfields.com

Carlton Fields, P.A

405 Lexington Avenue, 36th Floor 

New York, New York 10174

T: 212.380.9617 / F: 212.785.5203

Attorneys for Defendant TracFone

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