Defendant’s Counterclaim Asserting Venue in Forum Court Does Not Waive Objection to Venue​

Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct. 1514 (2017), the court granted defendant's motion to dismiss plaintiff's patent infringement action for improper venue and found that defendant did not waive its venue defense through its counterclaim. "[Plaintiff's] argument that [defendant] waived its improper venue defense by virtue of its Counterclaim is unpersuasive. [Defendant's] Counterclaim states, '[b]ased solely on [plaintiff's] filing of this action, venue is proper, though not necessarily convenient, in this District pursuant to at least 28 U.S.C. §§ 1391 and 1400.'. . . As long as [defendant] otherwise preserved its improper venue defense, its counterclaims -- directed at [plaintiff's] conduct and connections with the forum -- do not create a waiver."

Blue Spike, LLC v. Contixo Inc. et al, 6-16-cv-01220 (TXED July 26, 2017, Order) (Love, MJ)