U.S. District Judge Cathy Ann Bencivengo for Southern California in San Diego signed an order Monday (docket 3:22-cv-01764) demanding proof by Feb. 27 that plaintiffs Barbara Brittain and Linda Dial served their fraud class action on defendant Amazon, or to show cause in writing why their case shouldn't be dismissed “for failure to prosecute.” Since the complaint was filed and a summons issued, both Nov. 10, “no other activity has occurred in this case, and there is no indication on the docket that the complaint has been served,” said Bencivengo’s order. Brittain and Dial allege Amazon “misrepresents” the benefits of Prime memberships when it advertises products available for free shipping in one or two days but in reality keeps members “waiting substantially beyond” those promised turnaround times (see 2211130001).

Meta consented to have its data-scraping complaint proceed before U.S. Magistrate Judge Laurel Beeler for Northern California in San Francisco, said its filing Thursday (docket 3:23-cv-00154). Meta alleges Voyager Labs developed, distributed and used surveillance software that relied on fake accounts and “unauthorized automated means” to scrape data from Facebook and Instagram, and other websites such as Twitter, YouTube, LinkedIn and Telegram (see 2301130044). It wants a jury trial.

The Delaware Superior Court in New Castle County granted Bright Data leave to file its complaint against Meta and Instagram under seal, said its order Friday (docket N23C-01-065). Bright Data’s complaint, the nature of which wasn't disclosed, contains “confidential and sensitive business information, the disclosure of which may cause harm to certain parties or non-parties to this litigation,” said the company's motion earlier Friday. The filing specifically contains sensitive information “subject to contractual confidentiality provisions,” it said. The information is “so sensitive and valuable to the parties” that had the court denied the motion to seal, Bright Data would have asked the chief clerk to take no action to file the complaint on the court’s public docket, it said. It expects to file a redacted public version of the complaint within 30 days, it said.The sealed complaint was referred to Delaware's Complex Commercial Litigation Division, a docket entry shows. Israeli-based Bright Data bills itself as the world’s top web data platform. Sole practitioner David Wilks, in Wilmington, Delaware, is representing Bright Data in the complaint.

VoIP-Pal lauded Monday’s decision of the U.S. Court of Appeals for the Federal Circuit denying Amazon’s mandamus petition to vacate the orders of U.S. District Judge Alan Albright for the Western District of Texas in Waco and transfer VoIP-Pal’s infringement lawsuit against Amazon to the Northern District of California (see 2301100001). “We are very pleased that the appellate court has upheld the district court’s decision to keep the case in Waco,” said VoIP-Pal CEO Emil Malak in a statement Wednesday. “This has been a long legal process that we hope to bring to a fair conclusion soon.” The Federal Circuit’s three-judge panel ruled unanimously that Amazon failed to show the Northern California transferee venue was clearly more convenient, and that the district court was correct in denying Amazon’s motion for reconsideration. Amazon hasn’t commented on the decision.

Nimitz Technologies’ second try at petitioning the U.S. Court of Appeals for the Federal Circuit for a panel rehearing or rehearing en banc of the Dec. 8 decision denying mandamus relief from its dispute with a district judge in Delaware was flagged for the second time in a week as being noncompliant with Federal Circuit rules (see 2212230001), said a notice Tuesday (docket 23-103). Nimitz is seeking to vacate the judge’s order for the production of bank records, emails and other documents that the company asserts contain information protected by attorney-client privilege. It blasted the Federal Circuit’s decision denying mandamus relief as “unprecedented and destructive of the venerable common law attorney client privilege.” The judge is seeking the records for his investigation into the third-party funding of four Nimitz patent infringement lawsuits.

A day after Mercantile Adjustment Bureau filed a motion to dismiss Sage Telecom’s telemarketing complaint for failure to state a claim (see 2212150047), Senior U.S. District Judge Sidney Fitzwater for Northern Texas in Dallas signed an order Thursday (docket 3:22-cv-02737) warning Mercantile that its Dec. 7 notice of removal was defective. If it's not fixed in 14 days, Fitzwater will remand the case to the state court where it originated, his order said. Mercantile’s notice failed to allege its principal place of business and to allege the citizenship of all members of its limited liability company, said the judge. All federal appellate courts that have addressed the issue of LLCs “have reached the same conclusion,” said Fitzwater: that the citizenship of an LLC is “determined by the citizenship of all of its members.” Sage’s complaint alleges Mercantile engaged in “continuous and repetitive” telephone solicitations at least 187 times in the past two years to low-income households that subscribe to Sage’s wireless and broadband services, and did so without the required certification from the Texas secretary of state, in violation of the Texas Business and Commercial Code.

Demonstrating or creating public disturbances in the public areas of the Prettyman Courthouse and Bryant Annex are cause for removal from the courthouse and can result in contempt sanctions and/or being barred from entering the courthouse in the future, the U.S. Court of Appeals for the D.C. Circuit said Tuesday, announcing a courthouse decorum policy.

U.S. District Judge Alan Albright’s denial in the Western District of Texas of Amazon’s motion to transfer a VoIP-Pal patent infringement lawsuit to the U.S. District Court for Northern California was based on “clearly erroneous” factual and legal premises, said Amazon’s reply brief Friday (docket 23-104) in the U.S. Appeals Court for the Federal Circuit. VoIP-Pal’s brief opposing Amazon’s petition for mandamus relief to vacate Albright’s denial (see 2211300028) “fails to defend those errors,” said Amazon. VoIP’s infringement claims focus on “access codes and related messages sent and received by a mobile phone” to initiate a call over the internet, it said. Amazon’s noninfringement defenses focus on the inability of Alexa devices to send and receive messages containing the required content, it said. The accused messages are generated or interpreted and “used by Amazon Calling 'middleware,' and the team that developed the accused functionality” is based in Sunnyvale in the Northern District of California, it said. “People on that Sunnyvale team will be the key technical witnesses in the case. VoIP-Pal does not dispute that those witnesses are critical to the case.” Venue determinations “are supposed to be practical analyses” that consider the convenience of witnesses who will actually testify, the location of evidence that will actually matter, “and the local interests regarding the issues actually in dispute,” it said. The “material witnesses, evidence, and local interests” in this case are all “centered” in the Northern District of California, it said. A “few material witnesses” may be located elsewhere, but none is in the Western District of Texas, it said.

Respondent VoIP-Pal opposes Amazon’s petition for a writ of mandamus from the U.S. Court of Appeals for the Federal Circuit directing U.S. District Judge Alan Albright for the Western District of Texas in Waco to vacate his orders denying Amazon’s transfer of a patent infringement action to the U.S. District Court for Northern California, said VoIP-Pal’s opposition brief Tuesday (docket 23-104). This Federal Circuit should deny Amazon’s petition and affirm the district court’s orders “because Amazon has not and cannot show that its request meets the high standard for mandamus relief,” it said. Amazon tried three times to convince the district court that the Northern District of California “is clearly the more convenient venue for this case,” it said. “Each time Amazon failed. Thus, it should come as no surprise that Amazon fails to show that its right to a writ of mandamus is clear and indisputable, much less that the writ is appropriate under the circumstances.” Amazon’s petition “hinges on the thin claim” that the district court misunderstood the role of the operating system “in the so-called call-initiation functionality” of its Alexa devices “that Amazon contends is accused of infringement,” said the brief. “But this claim is based on the false premise that VoIP-Pal’s infringement claims are based solely on call-initiation functionality. They are not.” Call-initiation functionality “is a term that Amazon concocted to try to narrow the pool of relevant witnesses to only those residing near its offices in Sunnyvale, California,” it said. It’s those witnesses “who allegedly develop middleware used by Amazon’s accused Alexa calling devices to communicate with other devices,” it said. VoIP-Pal’s infringement claims, however, “also expressly cover internal communications between the hardware components of the Alexa calling devices, which implicate Amazon’s Austin, Texas-based teams who design and develop the OS for these devices,” and weighs in favor of keeping the case in Waco, it said.

Text messages, and other forms of electronic messaging, “are increasingly the subject of significant court rulings, creating either huge risk or opportunity for serious sanctions (depending on which end of the issue the client finds itself),” said the Bryan Cave law firm in an analysis Friday. “Even if sanctions are not imposed or do not affect a merits-based determination of the claims, a party’s failure properly to account for text messages creates a significant distraction from the merits and costly collateral motion practice.” Sanctions decisions also are beginning to emerge “relating to less commonly known digital messaging applications,” said Bryan Cave. It cited a case in U.S. District Court for Arizona, FTC v. Noland, in which the senior management of a company under FTC investigation, Success by Media, began using “ephemeral” communication apps in messages designed to disappear quickly after receipt. Use of the apps “continued after an appointed receiver demanded that personnel preserve communications and even after a restraining order,” said the law firm. Former Success by Media executives also deleted the apps from their phones “the day before the phones were to be imaged to capture data,” it said: “The court imposed an adverse inference instruction as a sanction.” Legal scholars say adverse-inference instructions were developed on the premise that a party's intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to that party.