District Court Split Excuses Pre- In re Micron Delay Asserting Venue Challenge

The court transferred plaintiff's patent infringement action in response to defendant's motion to dismiss and rejected plaintiff's argument that defendant's venue challenge was untimely. "⁠[Defendant] concedes that its motion came six months after [TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct 1514 (2017)], but the delay was due to the fact that other courts interpreted TC Heartland differently. There was a district court split over whether a challenge to venue was waived if the moving party delayed in raising this issue. . . . Once the Federal Circuit issued its opinion in [In re Micron Technology, Inc., 875 F.3d 1091 (Fed. Cir. 2017)] holding that 'TC Heartland changed the controlling law,' [defendant] filed the instant motion within a week. . . . To hold that [defendant] was required to immediately file its change of venue motion after TC Heartland was issued, but prior to the definitive guidance in Micron Technology, when the only law in this circuit at the time held that TC Heartland did not change the law, would be patently unfair to [defendant]."

SCVNGR, Inc. d/b/a LevelUp v. DailyGobble, Inc. d/b/a Relevant, 1-16-cv-00134 (RID December 27, 2017, Order) (McConnell, Jr., USDJ)