In Re ACCESSIBE LTD.

Case: 22-113 Document: 16 Page: 1 Filed: 12/06/2021
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: ACCESSIBE LTD.,
Petitioner
______________________
2022-113
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:20-
cv-00997-ADA, Judge Alan D. Albright.
______________________
ON PETITION
______________________
Before DYK, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
ORDER
accessiBe Ltd. petitions for a writ of mandamus direct-
ing the United States District Court for the Western Dis-
trict of Texas to vacate its November 3, 2021 order denying
transfer and to transfer this matter to the United States
District Court for the Western District of New York. Audi-
oEye, Inc. opposes the petition. accessiBe replies.
AudioEye brought this suit in the Western District of
Texas against accessiBe, asserting patent infringement
claims, Lanham Act claims of false advertising and product
disparagement, and New York state law claims of product
Case: 22-113 Document: 16 Page: 2 Filed: 12/06/2021
2 IN RE: ACCESSIBE LTD.
disparagement, slander/defamation, tortious interference
with prospective economic advantage, deceptive business
practices, and unjust enrichment. AudioEye’s complaint
alleges, among other things, that accessiBe made false,
misleading, and disparaging statements regarding Audio-
Eye’s products and services to two companies located in the
Western District of New York and an unnamed “consumer
in New York.” Appx0082 at ¶¶ 184, 189; see Pet. at 6.
accessiBe moved to transfer the case under 28 U.S.C.
§ 1404(a) to the Western District of New York. On Novem-
ber 3, 2021, the district court denied the motion. The dis-
trict court found that accessiBe had failed to establish that
this action “might have been brought” in the transferee
venue. § 1404(a). More specifically, the district court
found that accessiBe had “not met or even attempted to
meet its burden with respect to the [Western District of
New York]’s exercise of personal jurisdiction over accessiBe
for any, much less all, of the claims at issue here.”
Appx0003. Having found that the threshold requirement
for transfer had not been established, the district court did
not analyze the relevant private and public transfer fac-
tors. accessiBe then filed this petition, contending that the
district court violated the party presentation rule because
there was no disagreement between the parties that the
transferee venue had personal jurisdiction over accessiBe.
To obtain mandamus relief, this court must be satisfied
that a petitioner has no “adequate alternative” means to
obtain the desired relief. Mallard v. U.S. Dist. Ct. for the
S. Dist. of Iowa, 490 U.S. 296, 309 (1989). Here, we cannot
say that it would be futile for accessiBe to ask the district
court to first reconsider its decision in light of its argu-
ments. See In re BigCommerce, Inc., 890 F.3d 978, 982
(Fed. Cir. 2018); In re Nat. Oilwell Varco, L.P., 2015-140,
2015 WL 10936642 at *2 (Fed. Cir. Aug. 7, 2015) (collecting
cases). We therefore deny the petition without prejudice to
refiling after accessiBe first asks the district court for re-
consideration. Any new petition for a writ of mandamus
Case: 22-113 Document: 16 Page: 3 Filed: 12/06/2021
IN RE: ACCESSIBE LTD. 3
from the district court’s ruling on reconsideration will be
considered on its own merits.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
FOR THE COURT
December 06, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
s32