Omission of Venue Challenge From First Rule 12(b) Motion Precludes Defendant From Invoking Intervening Change of Law to Excuse Waiver

The court denied defendant's motion to dismiss or transfer plaintiff's consolidated patent infringement actions for improper venue because defendant waived its venue defense. "It is well settled that an improper venue defense is waived if it is not included in 'a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.' [Defendant's] Motion to Dismiss the Complaint in [the first action] did not raise a defense of improper venue. The defense was therefore waived. . . . Even if the TC Heartland decision was an intervening change in law, the 'omission of improper venue from [a party]⁠'s first 12(b) motion constitutes a "procedural misstep,"' which precludes a party from '"invok[ing] intervening Supreme Court case law" in order to "correct" it.'. . . As to [defendant's] venue challenge in [the second action], [defendant] has already admitted that venue is proper. It may not now 'take back' this admission or otherwise seek to avoid its effects."

Nichia Corporation v. VIZIO, Inc., 2-16-cv-01453 (TXED November 15, 2017, Order) (Gilstrap, USDJ)