Failure to Request Indicative Ruling During Pendency of Appeal Waives Objection to Venue

Following a jury trial, a bench trial, appeal, and remand, the court denied defendant's motion to transfer for improper venue because defendant waived its venue defense through litigation conduct. "⁠During the pendency of [defendant's] appeal to the Federal Circuit, the United States Supreme Court issued its decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) . . . . [T]he court finds it inarguable that [defendant] wanted to wait for the outcome of the Federal Circuit appeal prior to raising its venue objections. . . . [Defendant] could have requested an indicative ruling from the district court under Fed. R. Civ. P. 62.1 during the pendency of the appeal. . . . This case has been through dispositive motion practice, jury trial, bench trial, post-trial motions, appeal and remand. It has been pending for more than eight years. In fact, this case predates every filing in TC Heartland, including the original pleadings that gave rise to the Supreme Court’s ultimate change of law. . . . [T]he age and breadth of this litigation would pose a novel -- and in this court’s view, unreasonable -- toll on judicial economy when compared with maintaining the case here."

Exmark Manufacturing Company Inc. v. Briggs & Stratton Corporation, 8-10-cv-00187 (NED June 28, 2018, Order) (Zwart, MJ)