BMC Software, Inc. v. Cherwell Software, LLC, 1-17-cv-01074 (VAED December 21, 2017, Order) (O'Grady, USDJ)
Thursday, December 28, 2017
Rented Server is Not a Place of Business for Determining Venue
The court granted defendant's alternative motion to transfer for improper venue because a rented server did not qualify as defendant's regular and established place of business. "Servers are not real property; they are personal property. To the extent the servers provide 'space' from which a business may operate, any such space would be virtual space and virtual space explicitly fails the [In Re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017)] test. Accordingly, the Court finds that [defendant] does not have a physical place in this district, merely a virtual space. . . . The undisputed facts establish that [defendant] rents a server rack from a third party that owns the data warehouses in Ashburn. The 'place' in question, then, is not [defendant's] place, but the third party's place."