Miscellaneous Docket No. 906 IN RE YAHOO! INC. and GOOGLE, INC v. Bonner Mall P'ship, 513 U.S. 18, 29 1994 mootness by reason of settlement does not…

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United States Court of Appeals for the Federal Circuit
Miscellaneous Docket No. 906
IN RE YAHOO! INC. and GOOGLE, INC.,

Petitioners.

On Petition for Writ of Mandamus to the United States District Court for the
Eastern District of Texas in case no. 6:08-CV-509, Judge John Love.

# ON PETITION FOR WRIT OF MANDAMUS

Before SCHALL, PROST, and MOORE, Circuit Judges.

PROST, Circuit Judge.

ORDER

Google, Inc. moves without opposition to withdraw its petition for a writ of
mandamus and to vacate the July 10, 2009 order of the United States District Court for
the Eastern District of Texas denying petitioners' motion to transfer venue. Google also
indicates that Yahoo! Inc. is no longer participating in the case due to settlement.

Although we grant the motion to withdraw the petition for a writ of mandamus, we
deem the better course is to require that the parties first move in the district court if they
seek vacatur of the district court's order. See U.S. Bancorp Mortgage Co. v. Bonner
Mall P'ship, 513 U.S. 18, 29 (1994) (mootness by reason of settlement does not
necessarily justify vacatur of a judgment under review; court of appeals may instead
require that the matter be presented to the district court for consideration).

Accordingly,

IT IS ORDERED THAT:

(1)
The motion to withdraw the petition is granted.

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(2)
The motion to vacate the district court's order regarding transfer is denied
without prejudice to the parties requesting such relief from the district court.

FOR THE COURT

SEP - 1 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

CC:

Michael A. Jacobs, Esq.

Paul D. Clement, Esq.

Eric M. Albritton, Esq.

Judge, USDC E.D. Tex.

Clerk, USDC E.D. Tex.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

$19

SEP -1 2009
JAN HURBALY
CLERK