Failure to Challenge Venue in Initial Motion to Dismiss Waives Venue Challenge to Amended Complaint​

Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, 137 S.Ct. 1514 (May 22, 2017), the magistrate judge recommended denying defendant's motion to dismiss plaintiff's patent infringement action for improper venue and found that plaintiff's filing of amended complaint did not excuse defendant's waiver. "[N]o facts regarding venue changed from when [plaintiff] filed its Original Complaint to its Amended Complaint. Further, [defendant] had already proceeded to argue the merits of the case in bringing its first Motion to Dismiss under Rule 12(b)(6). As the Fifth Circuit has noted, '[i]f a defendant proceeds first on the merits, as by a motion to dismiss for failure to state a claim . . . and thereafter attempts to challenge jurisdiction over his person or improper venue, the challenge should fail.'”

Diem LLC v. BigCommerce, Inc., 6-17-cv-00186 (TXED July 6, 2017, Order) (Love, MJ)