Foreign Corporations & Venue – Personal Jurisdiction & Section 1404

Today’s posts deal with a couple of instances of the issue of venue practice by foreign corporations in patent cases. Currently this often takes the place of a motion to dismiss for lack of personal jurisdiction under FRCP 12(b)(2) and an alternative motion to transfer under 28 USC Section 1404.  Today we have a couple of examples of this.

“Stream of Commerce” & “Regular and Established Place of Business”

The Supreme Court’s recent opinion in TC Heartland has had the effect of shifting the focus of venue briefing in many cases from Section 1404 motions to transfer venue to Rule 12(b)(3) motions to dismiss for improper venue, often asserting that the defendant does not have a “regular and established business” in the district, as well as Section 1404 motions seeking a transfer based on convenience.

Because of the similarity of the former improper venue analysis to a motion to dismiss for lack of personal jurisdiction, those motions were sometimes brought together, even though to be successful, the latter had to show the lack of sufficient contacts with the entire state of Texas, not just the district.

This case presents both flavors of motions to dismiss in the case of automobile manufacturers and distributors, and required rebriefing of the convenience issues after the Court’s ruling on the first two motions.

Jurisdictional discovery

Come to think of it, with general jurisdiction rare, and specific jurisdiction also hard to come by – maybe there is a romance novel in there someplace. When you can get jurisdictional discovery and what you can get are beyond the scope of this order in a case where the existence of personal jurisdiction was challenged.  But it does tell you what the timing would be and how it affects your briefing schedule.