Employee’s Home Office Qualifies as Regular and Established Place of Business

The court denied one defendant's motion to dismiss for improper venue because defendant had a regular and established place of business through an employee's home office in the forum. "⁠[One defendant's] New York employee's home office is not merely a 'sporadic' or isolated work environment. . . . [S]ales representatives 'contact[] a prospective customer at a potential customer's office' and 'take initial sales orders.'. . . Although [defendant] does not require sales people to live in their assigned territory, [it] admits that it 'tries to hire people living within their assigned sales territory,' one of which is New York. Indeed, [defendant's] job postings reveal that it seeks out territory managers for specific locations. . . . And . . . sales agents must contact potential customers at their offices and conduct trainings when [defendant's] products arrive. All of these tasks necessitate proximity to customers."

RegenLab USA LLC v. Estar Technologies Ltd. et al, 1-16-cv-08771 (NYSD August 15, 2018, Order) (Carter, Jr., USDJ)

Web-Based Businesses Not Exempt From In re Cray

The court granted defendant's motion to transfer for improper venue and rejected plaintiff's argument that In re Cray’s three-part definition for "regular and established place of business" should not apply to web-based businesses. "Plaintiff asks this Court to recognize the nature of Defendant’s business – facilitating communication over the web, in every state including Nevada – and to limit the application of [In re Cray, 871 F.3d 1355 (Fed. Cir. 2017)] to factual circumstances where physical products are involved. . . . The Court finds, however, that the key inquiry is not whether physical objects are involved, but rather whether the public has access to the defendant corporation through an employee or office located in the district where a suit is brought or if the public directly accesses the services of defendant through a location in the respective forum. . . . [T]he bulk of the defendant’s employees, product development, and overall operations are located in San Francisco, and that it does not own or lease any buildings in this district, it has no Nevada phone numbers or addresses listed for its operations, and it stores no inventory or data in Nevada. These facts demonstrate that Defendant maintains no place of business in Nevada, much less one that is both regular and established."

Voip-Pal.com, Inc. v. Twitter, Inc., 2-16-cv-02338 (NVD July 23, 2018, Order) (Boulware, II, USDJ)

Courts May Not Exercise Pendant Venue Over Third Parties

The court granted defendant's motion to dismiss for improper venue because plaintiff provided no authority for the court to exercise pendant venue over defendant to further judicial economy in a two-defendant action. "Plaintiff argues that judicial economy considerations favor the Court’s exercise of pendent venue, as granting [defendant's] motion would effectively bifurcate this matter into two separate actions. . . . Plaintiff fails to present any authority, binding or otherwise, suggesting that courts after [TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017)] exercise pendent venue over third parties in patent infringement actions. . . . Plaintiff asserts that declining pendent venue over its claims against [defendant] would waste time and resources by bifurcating this matter into two separate suits on 'opposite sides of the country.' But, at this stage, Plaintiff’s argument is pure conjecture: Plaintiff does not claim, nor does it appear, that it has initiated this separate suit."

Olivia Garden, Inc. v. Stance Beauty Labs, LLC et al, 4-17-cv-05778 (CAND July 12, 2018, Order) (Gilliam, USDJ)

Employing Four Researchers at University Lab Does Not Create a Regular and Established Place of Business for Venue

The court granted defendant's motion to dismiss for improper venue because defendant did not have a regular and established place of business by placing four employees at a university lab in the district. "The Court believes that . . . the educational-business collaboration at best may be interpreted as quasi-, and/or very-early-stage, research and development, the results of which are a joint product of the University and Defendant. . . . The Court seriously doubts whether such esoteric and preliminary endeavors may qualify as 'business' of Defendant. . . . Defendant has put forth unrefuted evidence establishing that [the university] owns and controls the facility; Defendant’s employees are designated as visitors; funding provided by Defendant to [the university] covers fellowship-tuition and research support, not the cost of housing the employees; signage identifies the lab as a [university] research center, with funding by Defendant; and the lab is neither publicly advertised nor internally classified as Defendant’s facility."

X2Y Attenuators, LLC v. Intel Corporation, 1-17-cv-00164 (PAWD June 25, 2018, Order) (Bissoon, USDJ)

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)

Delay in Objecting to Venue Not Excused by Existence of Foreign Defendant

The magistrate judge recommended denying defendant's motion to dismiss or transfer for improper venue and rejected defendant's argument that it did not waive its objection to venue because the objection was not available until the court dismissed another defendant. "The holding of [TC Heartland LLC v. Kraft Food Grp. Brands LLC, 137 S. Ct. 1514 (2017)] applied to domestic corporations. At the time that TC Heartland issued, then, regardless of whether the claims against the foreign defendant would ultimately be rejuvenated by the District Court, it should have been clear to [defendant] that venue in this District was not proper as to it. And so there is no reason why the venue defense was not 'available' to [defendant] until [the district judge] affirmed the Court's motion to dismiss R&R in December 2017."

Princeton Digital Image Corporation v. Ubisoft Entertainment SA, 1-13-cv-00335 (DED June 25, 2018, Order) (Burke, MJ)

Seven Month Delay While Actively Litigating Waives Venue Challenge

The court denied defendants' motion to dismiss or transfer for improper venue because defendants waived their venue challenge through their litigation conduct. "⁠[D]uring the seven months after the [TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017)] decision, [defendants] were actively litigating this case in this District. . . . [M]otions for summary judgment were denied. . . . A Claim Construction Order was issued shortly thereafter. . . . [Defendants] also filed two new motions for summary judgment before filing this Motion. . . . This procedural history reflects the type of 'tactical wait-and-see bypassing of an opportunity to declare a desire for a different forum' expressly identified in [In re Micron Tech., Inc., 875 F.3d 1091 (Fed. Cir. 2017)] as a paradigm for when an objection to venue could be waived notwithstanding the new law as to Rule 12(h). . . . TC Heartland changed the law with respect to the definition of corporate residence for the purposes of patent venue. However, it did not change the underlying prudential framework for the assessment of challenges to venue like the one raised here."

Adrian Rivera v. Remington Designs, LLC d/b/a iCoffee, 2-16-cv-04676 (CACD June 19, 2018, Order) (Kronstadt, USDJ)

Seven Month Delay Alone Does Not Waive Venue Challenge

The court granted defendant's motion to transfer for improper venue and rejected plaintiff's argument that defendant waived its venue challenge. "Plaintiff does not appear to challenge the contention that venue in this Court is improper. Rather, Plaintiff argues that . . . Defendant forfeited its privilege to challenge venue by waiting nearly seven months after the [TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017)] decision to file its motion. . . . [D]espite Defendant’s delay in filing the instant motion, Plaintiff cites no undue prejudice caused by the delay; nor can the Court discern any such prejudice to Plaintiff. Specifically, there has been no additional motion practice, an initial pretrial conference has not yet been scheduled, discovery has not yet commenced, and no trial date has yet been set."

Blue Rhino Global Sourcing, Inc. v. Sky Billiards, Inc. d/b/a Best Choice Products, 1-17-cv-00069 (NCMD June 20, 2018, Order) (Biggs, USDJ)

"Necessary" Distributor’s Place of Business Does Not Establish Venue for Supplier

The court granted defendant's alternative motion to transfer for improper venue because defendant did not have a regular and established place of business in the district through its "necessary" distributor. "⁠[T]here is abundant case law from other district courts holding that a distributor’s place of business cannot establish venue for its supplier. Citing no case law, [plaintiff] responds that this uniform line of cases is distinguishable because 'none of them involve the case where the use of a distributor is necessary to conduct the business of the defendant.' However, business necessity is insufficient to impute [a distributor's] place of business to [defendant]. . . . The purpose of the statutory limits on venue in the patent venue statute was to protect defendants from being sued in forums distant from their place of incorporation or residence. [Plaintiff's] proposed 'necessary distributor' rule would largely defeat that policy; indeed, given that smaller manufacturers are more likely to need to rely on distributors than larger ones, [plaintiff's] rule would have the perverse effect of subjecting smaller corporations more subject to suit in distant forums than larger ones."

EMED Technologies Corporation v. Repro-Med Systems, Inc. d/b/a RMS Medical Products, 2-17-cv-00728 (TXED June 4, 2018, Order) (Bryson, CJ)

Venue Statutes Do Not Apply to Foreign Defendant

The court denied defendant's motion to dismiss or transfer for improper venue. "While it was previously unclear whether § 1400(b) was controlling for foreign defendants involved in patent infringement suits, the Federal Circuit recently reaffirmed the 'long-established rule that suits against aliens are wholly outside the operation of all the federal venue laws, general and special.' Thus, a foreign defendant may be sued in any judicial district under 28 U.S.C. § 1391(c)(3). . . . Here, it is uncontested that the sole defendant in the case is a Swedish corporation. In light of this recent Federal Circuit case, the Court finds that venue is proper over [defendant] in this District."

Endo Pharmaceuticals Inc. v. Lupin Atlantis Holdings SA, 2-17-cv-00558 (TXED May 30, 2018, Order) (Gilstrap, USDJ)

Ratification of Subsidiary’s In-District Facility Qualifies as Regular and Established Place of Business

The court denied a defendant's motion to dismiss plaintiffs' patent infringement action for improper venue because defendant had a regular and established place of business in the district by ratifying its subsidiary's manufacturing and research facility as its own place of business. "⁠[Defendant's] own corporate announcement and reports from San Antonio media reflect that [defendant] announced its move to San Antonio . . . more than 8 years ago. The court concludes that an 8-year presence reflects a regular and established place of business. . . . [W]hatever the lease arrangements are, the court concludes that [defendant] has ratified the San Antonio facility as its place of business. Also, [defendant] represents that it has a place of business in the district, as it lists the San Antonio facility as a place of business on its website, in the telephone and other web-based directories, and has placed its name on a large sign on the exterior of building."

Board of Regents, The University of Texas System et al v. Medtronic, Inc. et al, 1-17-cv-00942 (TXWD May 17, 2018, Order) (Yeakel, USDJ)

Working Closely With Corporate Affiliate Does Not Create a Regular and Established Place of Business Necessary for Venue

The court granted defendants' motion to transfer for improper venue because one subsidiary defendant's contacts with the district were insufficient to establish a regular and established place of business in the district for another subsidiary defendant. "Defendants concede that [one defendant] has a place of business in this district in the form of a retail store. . . . Defendants dispute some of [plaintiff's] allegations, but even if the court assumes that all of them are true, they show only that defendants are both subsidiaries of the same parent company and that they collaborate on matters common to both of them. That’s not sufficient to treat defendants as interchangeable for the purpose of determining whether each has a place of business in this district. . . . Because there is no authority for the view that venue is proper as to one corporation simply because that corporation 'works closely' with another corporation that may be sued in that district, [plaintiff] has failed to meet its burden to show that venue is proper in this district."

Unity Opto Technology Co., Ltd. v. Lowe's Home Centers, LLC et al, 3-18-cv-00027 (WIWD May 4, 2018, Order) (Peterson, USDJ)

Improper Venue Does Not Limit Applicability of First-to-File Rule

The court granted defendants' motion to dismiss plaintiffs' second-filed declaratory relief action under the first-to-file rule even though the defendants' first-filed action was filed in an improper venue. "The plaintiffs . . . contend that the first-to-file rule is inapplicable because the Eastern District of Texas lacked venue, and therefore, lacked subject matter jurisdiction over the case. Improper venue does not strip a court of subject matter jurisdiction since Congress authorizes district courts to evaluate venue and to transfer a case in which venue is improper to a district where the case could have been brought. For this reason, improper venue in the first-filed court does not limit application of the first-to-file rule or alter this Court’s conclusion that the rule applies here."

Sandoz, Inc. et al v. Duke University et al, 1-17-cv-00823 (NCMD April 24, 2018, Order) (Eagles, USDJ)

Shelf is not a Place of Business Under Patent Venue Statute

The court granted defendants' alternative motion to transfer for improper venue because defendants did not have a regular and established place of business in the district. "The full extent of Defendants’ physical presence in the [district] is a shelf containing a piece of [one defendant's] telecommunications equipment. . . . [T]his equipment is involved in processing calls to and from New York-based phone numbers. . . . All electronic traffic flowing to [defendant's] equipment travels via [plaintiff's] network. . . . In a sense, the preposition is key: [defendant's] employees may direct telecommunications traffic through New York, but they do not engage in business from the shelf itself. . . . The Court acknowledges that a human-centered definition of 'place of business' may feel unsatisfying in an economy increasingly characterized by virtual transactions. But the Court is constrained to follow the text of the statute, which 'cannot be read to refer merely to a virtual space or to electronic communications from one person to another.'. . . Under a faithful reading of the statute, the Court must conclude that whatever a 'place of business' is, it is not a shelf."

Peerless Network, Inc. v. Blitz Telecom Consulting, LLC et al, 1-17-cv-01725 (NYSD March 26, 2018, Order) (Oetken, USDJ)

Doctrine of "Ancillary" Venue Does Not Provide Independent Basis for Venue

The court granted counterclaim defendants' motion to dismiss for improper venue because defendants lacked a regular and established place of business in the district and ancillary venue did not apply. "Even assuming that [defendants] have committed acts of infringement in the Northern District of Illinois, venue would still be improper because neither maintains a 'regular and established place of business' in the District. [One defendant] has no offices or property in the District, and no phone number or mailing address here. [The other defendant] likewise does not have a regular and established place of business in the District. . . . [Counterclaimant] cites no authority for the proposition that the doctrine of ancillary venue (whatever that really is) can override the clear terms of the patent venue statute. And [TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017)] puts the nail in the coffin: if the general federal venue statute does not supplement the patent venue statute, then it is unclear why a nonstatutory doctrine could do so."

Shure Incorporated v. ClearOne, Inc., 1-17-cv-03078 (ILND March 16, 2018, Order) (Chang, USDJ)

Office Closed a Few Weeks Before Lawsuit is a Regular and Established Place of Business for Venue

The court overruled defendant's objection to the magistrate judge's recommendation to deny its motion to transfer for improper venue because defendant had a regular and established place of business in the district through its office that closed a few weeks before plaintiff filed suit. "Abiding by the Federal Circuit's admonition that '⁠[i]n deciding whether a defendant has a regular and established place of business in a district, no precise rule has been laid down and each case depends on its own facts,' the undersigned finds that the fact that [plaintiff] filed suit in this District within weeks after [defendant] closed its doors is reasonable. Finding that [defendant's] established and regular business in the District weeks before suit was filed is sufficient for establishing venue pursuant to Section 1400(b) does not offend Section 1400(b)'s purpose 'to eliminate the "abuses engendered" by previous venue provisions allowing such suits to be brought in any district in which the defendant could be served.'"

ParkerVision, Inc. v. Apple Inc. et al, 3-15-cv-01477 (FLMD March 8, 2018, Order) (Davis, USDJ)

Clinical Activities Within § 271(e)(1) Safe Harbor Are Not “Acts of Infringement” For Determining Venue

The magistrate judge recommended granting defendants' motion for summary judgment of improper venue because there were no infringing acts in the district inasmuch as the accused activities fell under the safe harbor provision of 35 U.S.C. § 271(e)(1). "Plaintiff has not alleged any facts showing activities in this District other than those statutorily exempted from infringement by § 271(e)(1). . . . [T]he relevant question here is not whether Defendants engaged in uses outside the District that are not 'solely' or 'reasonably related' to seeking FDA approval, but rather, whether Defendants have engaged in any such uses in this District so that venue is proper. . . . [A]ll acts of infringement in the Eastern District of Texas are solely clinical, and therefore, the § 271(e)(1) safe harbor applies despite purported nonexempt activity in Minnesota."

Snyders Heart Valve LLC v. St. Jude Medical SC, Inc. et al, 4-16-cv-00812 (TXED March 7, 2018, Order) (Priest Johnson, MJ)

Venue Not Determined When Cause of Action Accrues

The court granted one defendant's motion to transfer for improper venue because defendant lacked a regular and established place of business in the district through its former office that closed shortly before plaintiff filed suit. "⁠[Plaintiff] argues . . . that the location in Plymouth Meeting is sufficient to defeat [movant's] motion to transfer because [it] had a regular and established place of business in this district when the cause of action accrued, and Plaintiff initiated the relevant action on June 30, 2010, a reasonable time after [movant's] office closed in 2009. . . . Some courts have held that venue is proper under § 1400(b) when a defendant had a regular and established place of business in a district, and the plaintiff initiated the action within a reasonable time after the place of business was closed. However, this rule has not been adopted by the Third Circuit Court of Appeals, and this Court declines the invitation to apply said ruling in this patent case."

Infinity Computer Products, Inc. v. OKI Data Americas, Inc., 2-12-cv-06797 (PAED February 23, 2018, Order) (Alejandro, USDJ)

Successful Motion to Intervene Waives Venue Challenge

The court denied intervenors' motions to sever and transfer plaintiff's actions against them for improper venue because intervenors waived venue through their intervention. "By definition, an intervenor is '⁠[s]omeone who voluntarily enters a pending lawsuit because of a personal stake in it.' This choice to intervene (or consent to proceed in a particular jurisdiction and venue) has real and far-reaching consequences. . . . [T]he intervenors cannot now question the propriety or convenience of a venue they chose to enter. The intervenors voluntarily entered this proceeding and now must litigate in this, their chosen venue."

Team Worldwide Corporation v. Wal-Mart Stores, Inc. et al, 2-17-cv-00235 (TXED February 13, 2018, Order) (Gilstrap, USDJ)

Auto Dealership Facilities Do Not Qualify as Regular and Established Place of Business of Vehicle Manufacturer or Distributor

The court granted defendants' alternative motion to transfer plaintiff's patent infringement action for improper venue because defendants did not have a regular and established place of business through their dealerships in the district. "Defendants are two distinct corporate entities. . . . The dealerships are also separate corporate entities. . . . [T]here is no fact supporting that Defendants are the parent corporations of the dealerships owners or operators. . . . [T]here are no facts that Defendants even own any interest in the dealerships. Plaintiff’s theory is predicated on the Defendants’ operating agreement with the . . . dealerships exerting such control that the dealerships are essentially the same entity. This theory ignores the separate corporate forms of Defendants and the dealerships. The Court finds no facts to support collapsing the corporate forms; the dealerships’ physical locations are not places of Defendants."

West View Research, LLC v. BMW of North America, LLC et al, 3-16-cv-02590 (CASD February 5, 2018, Order) (Sammartino, USDJ)