One of the questions presented after TC Heartland was whether waiver would apply in the cases of defendants who did not assert the Fourco defense of improper venue prior to the Supreme Court’s decision TC Heartland. In a recent case an EDTX court reviewed recent decisions by other courts finding that waiver does apply and agreed, at least in the situation of a looming trial date.
It wasn’t at a pretrial conference, but instead in an initial responsive pleading that Apple today challenged a plaintiff’s complaint for failure to state a claim under 12(b)(6), but did not challenge venue under 12(b)(3) under TC Heartland.
A little more information this afternoon on how TC Heartland is playing out on the ground in EDTX.
Biscotti Inc. v. Microsoft Corporation, 2:13cv1015-JRG-RSP is a patent infringement case that’s closing in on trial before Judge Gilstrap in Marshall. (Readers might recall my post on Judge Payne’s recent order on the effect of Microsoft’s IPR activity on its invalidity defenses at trial.)
In the course of the pretrial conference before Judge Payne earlier today, Microsoft noted in response to a question from the Court that it would not be asserting a challenge to venue in the EDTX as a result of the Supreme Court’s decision in TC Heartland.
Prior to the Supreme Court’s decision last week, the TC Heartland improper venue argument was made in a number of EDTX cases, and to my knowledge was uniformly denied based on the then-existing Federal Circuit authority. EDTX cases such as the attached are beginning to roll out establishing procedures for arguing (or in some cases rearguing) the effect of the case on a pending case.
This is a case involving claims by the North American Deer Registry against the company it retained to process deer genetic information. The defendant sought to:
- dismiss the complaint
- compel arbitration
- transfer venue; and
- stay the case.
Judge Mazzant denied them all. On the assumption it had something to do with the law and not just Texans’ overarching interest in all things deer, I have analyzed the rulings.
There are a number of recent cases both transferring and declining to transfer cases brought in the EDTX against Google to California. This is one of the latter.
As readers might recall, there is a case pending before the Supreme Court involving the correct interpretation of the word “resides” in the venue statute. (Photo at left of Collin, Parker and I hanging out with the statue of our favorite Supreme Court justice, our home town’s namesake John Marshall at the S. Ct. building last month). A decision is expected later this month, or the next. Or maybe not.
While any court’s analysis of what the outcome of a pending or potential motion might be if the current interpretation of “resides” by the Federal Circuit is reversed is at best dicta and at worst a WAG, I have started warehousing hints, clues and theories from courts such as that analyzed below as to what happens if TC Heartland causes venue law to jump from the Prime to the Kelvin time line as it were.
It’s a great month to go to Washington. And enjoy a cup of damn fine coffee and a slice of cherry pie, because Twin Peaks is baaaack!
But that may not be how Uniloc sees it. Of the top five filers of patent cases nationwide last year, only two filed in EDTX. Hawk filed about seven of its 40-odd cases here, and only Uniloc filed all of its cases here. But there is now one fewer since Judge Gilstrap granted a motion to transfer its claims against one defendant to Washington. But as Peakers know, the owls are not what they seem, and similarly, as noted below, there’s an important twist here – this isn’t a transfer based on the traditional 1404 factors at all…
I posted the other day on a case that was transferred to ND Cal. on the defendant’s motion. Statistics over the past three years indicate that motions to transfer in the EDTX are granted at a rate of about 50% (2014 – 48.4%; 2015 – 51.85%; 2016 – 48.39%), so here’s one where the motion to transfer to N.D. Cal. was denied, despite the deleterious effects on fictional (and perhaps magical) transport animals, whose existence and convenience is required to be considered when passing on motions to transfer. But as the Court noted in this case, there is another fiction that is not.
In this case,
Defent sought a transfer to its home court of the Northern District of California. In the attached opinion, Judge Payne granted the motion, finding that the defendant had shown that the Northern District of California is a clearly more convenient forum for this action. The opinion contains extensive and useful analysis on private interest factors as applied to a defendant headquartered in Pal Alto, California, as well as the “local interests” public interest factor.