Thursday, November 16, 2017

In re Cray is Intervening Change of Law Excusing Waiver of Venue Challenge Through Participation in Litigation

The court granted defendant's motion to transfer for improper venue and rejected plaintiff's argument that defendant waived its venue defense. "⁠[P]laintiff argues alternatively that defendant waived its venue objection through participation in this case, which both implicitly and explicitly amounted to consent to venue. Normally, plaintiff would have a good argument. However, [In re Cray, Inc., 871 F.3d 1355 (Fed. Cir. 2017)] constitutes an intervening change of law, such that defendant could not have waived its objection to venue. Because In re Cray changed the standard for 'regular and established place of business,' and [defendant] acted promptly in filing the present motion, it was not unreasonable for defendant to object when it did."

Rotex Global, LLC v. Gerard Daniel Worldwide, Inc., 3-16-cv-00523 (WIWD November 14, 2017, Order) (Conley, USDJ)

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