Lack of Physical Presence Alone Does Not Establish Lack of Regular and Established Place of Business​

Following the Supreme Court's decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct. 1514 (2017), the magistrate judge recommended denying defendant's motion to dismiss plaintiff's patent infringement action for improper venue because defendant did not establish that it did not have a regular and established place of business in the forum. "[Defendant's] underlying affidavit to support this assertion simply states, '[Defendant] does not directly or indirectly own business, sales, or distribution locations or other physical facilities in the Eastern District of Texas.' But lack of physical presence in the District is insufficient to establish improper venue. . . . By solely making statements regarding physical facilities in the District, [defendant] fails to set forth sufficient facts to support its argument that it lacks a regular and established place of business in the District."

Realtime Data LLC d/b/a IXO v. Exinda Inc., 6-17-cv-00124 (TXED August 1, 2017, Order) (Love, MJ)