Tinnus Enterprises, LLC et al v. Telebrands Corporation et al, 6-15-cv-00551 (TXED July 5, 2017, Order) (Love, MJ)
Friday, July 7, 2017
Defendants' Ongoing Participation in Litigation Process Waives Venue Objection
Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017), the magistrate judge recommended denying defendants' motion to dismiss plaintiffs' patent infringement action for improper venue because defendants waived the issue through their litigation conduct. "[N]ot only was Defendants’ venue challenge belatedly made, during the time at which [defendant] repeatedly admitted venue was proper, the Court had conducted lengthy proceedings on Plaintiffs’ motion for a preliminary injunction and granted the preliminary injunction. Throughout those injunction proceedings, [defendant] never once challenged venue. Since that time, the Court has conducted numerous additional proceedings, including claim construction proceedings, contempt proceedings, several discovery related motions, and pretrial motions. [Defendant] consented to all of these proceedings without objecting to venue. Accordingly, even if [defendant's] defense had not been waived under Rule 12, which it has, [its] continuous and consistent conduct in this action constitutes waiver."