In re Micron Forecloses Waiver and Forfeiture of Venue Challenge Arguments

The magistrate judge recommended granting defendant's motion to transfer for improper venue and rejected plaintiff's argument that defendant waived its venue defense. "The Federal Circuit's decision in [In re Micron Technology, Inc., (Fed. Cir. Nov. 15, 2017)] establishes that [defendant] did not waive its venue defense under Rule 12(h)(l) and Rule 12(g)(2) because the Supreme Court's decision in [TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017)] represents an intervening change in the law. . . . Application of the forfeiture test set forth in In re Micron pursuant to Rule 1 and the Supreme Court's decision in [Dietz v. Bouldin, Inc., 136 S. Ct. 1885, 1891 (2016)] does not alter this conclusion. The present record reflects that trial is not scheduled to take place [for 20 months], and the court does not find that [defendant] failed to seasonably assert its venue defense, having previously contested venue in its [prior] motion to transfer under § 1404(a), and having filed the present motion promptly after the Supreme Court's issuance of its decision in TC Heartland. Given the circumstances of the present case schedule and the Federal Circuit's caution that 'the lee-way to find such forfeiture' is not broad, the court concludes that [defendant's] motion cannot properly be denied on grounds relating to its timeliness."

Treehouse Avatar LLC v. Valve Corporation, 1-15-cv-00427 (DED November 20, 2017, Order) (Fallon, MJ)