Since the Supreme Court's TC Heartland decision issued, many have wondered how plaintiffs' should plead venue under 28 U.S.C. § 1400(b). For example, is a plaintiff required to provide support for an allegation that the defendant has a “regular and established place of business” in the judicial district? In Soverain IP, LLC v. Apple Inc.,2-17-cv-00207 (E.D. Tex. July 25, 2017) (Report and Recommendation, Magistrate Judge Payne, Dkt. 30), the Eastern District of Texas answered the question. The court held that a “plaintiff is under no obligation to plead facts supporting venue in the complaint. . . [accordingly,] detailed factual venue allegations (as opposed to citation of the venue statute relied upon) are not required.”
On March 16, 2017, Soverain filed a patent infringement complaint against Apple alleging that:
Venue is proper in this district under 28 U.S.C. §§ 1391(b)-(d) and 1400(b). Defendant Apple is registered to do business in the State of Texas, has offices in the State of Texas, and upon information and belief, has transacted business in the Eastern District of Texas and has committed acts of direct and indirect infringement in the Eastern District of Texas.
On June 12, 2017, after the TC Heartland decision, Apple filed a motion to dismiss for improper venue, arguing that Soverain had not alleged facts supporting venue. The Eastern District of Texas, however, found that the burden of establishing improper venue lies with the defendant because the defendant is in the best position to know or learn of facts relevant to whether it has a “regular and established place of business.” The court further explained that “an objection to venue is a personal privilege that offers protection from inconvenience, [therefore] the burden of establishing improper venue lies with the defendant.” In Soverain, the court noted that Apple had not “submitted a single affidavit or item of evidence establishing that venue is improper” and therefore failed to carry its burden of showing improper venue. Notably, the court acknowledged that its position is not universally accepted and that many other courts place the burden of establishing venue on the plaintiff.