Motions to transfer venue asserting inconvenience are less common recently, but this case provides a solid workout for the traditional factors, and indicates which continue to have significance when Section 1404 is asserted, particularly in a competitor case.
Plaintiff sought “targeted venue discovery” based on arguments made by the defendants at a recent hearing on the defendant’s motion for reconsideration of denial of their prior venue motion.
Of all the opinions Judge Hall authored while I clerked for him, Texas Instruments, Inc. v. Micron Semiconductor, Inc., 815 F. Supp. 994, 997 (E.D. Tex. 1993) seems to be the most-cited. While the case dealt with several issues, its central holding, that once the “substantial similarity” test is met, the “first-to-file” rule accords the first-filed court the responsibility to determine which case should proceed, was the part of the opinion cited again by Judge Gilstrap earlier this month in transferring a case.
This question and more are answered in the attached order resolving a motion to dismiss in a pharmaceutical case asserting (1) lack of personal jurisdiction; (2) improper venue; and (3) the first to file rule.
Turns out they have venue fights in Waco as well. Today’s Franklin Avenue update includes an order on the scope of permissible venue discovery.
This is a 1400(b) case in which the court passes on the plaintiff’s claim that the “regular and established place of business” test was satisfied. But the case had an interesting twist I had not seen previously.
Fourteen years ago now, two residents of the Eastern District of Texas drove the few miles that separated their homes from LBJ Freeway in Dallas, where they were rear-ended by a truck driver from Tyler, resulting in the death of their daughter/granddaughter in the back seat. Several months later the survivors of that collision, who had since moved out of the Eastern District, filed a product liability case in the Eastern District.
In its rulings (there were three) on the petition for mandamus of the district court’s order denying the defendant’s motion to transfer venue the Fifth Circuit held that it was the plaintiffs’ current residence, i.e. the residence at the time the suit was filed, that was relevant, not their residence at the time the cause of action arose. The consequences of that ruling have affected the actions of parties, district courts and the Federal Circuit ever since, including in a recent order publicly reprimanding an attorney for inaccurate factual contentions contained in his client’s declaration opposing a motion to transfer.
This motion began life challenging venue as improper and inconvenient. The portion alleging improper venue was later withdrawn, so the only issue remaining was whether venue was “clearly more convenient” in the Dallas Division of the Northern District of Texas.
This case has an interesting procedural history with respect to venue. Five months after TC Heartland the defendant filed a Section 1404 motion, but didn’t challenge venue as improper. That motion was denied, as was the mandamus petition challenging it. Ten months after the mandamus denial, after a change in lead counsel, the defendant filed a motion asserting improper venue. The order on that motion addresses several issues, including venue over foreign defendants, the geographic jurisdiction of the court, creative uses of the marking statute, and even more creative arguments regarding venue waiver.
Today’s second case addresses the same issues in a case involving the same plaintiff – but with different facts as to a different defendant. And I wanted to point out some additional analysis involving the Federal Circuit’s recent decision in In re HP.