District courts are issuing new orders every day that address different venue-related issues in the wake of the Supreme Court’s TC Heartland decision. We highlight two such cases below.
Last week, Magistrate Judge Roy S. Payne of the Eastern District of Texas recommended denying Yahoo’s motion to dismiss for improper venue in MyMail, Ltd. v. Yahoo!, Inc., 2-16-cv-01000 (E.D. Tex. Aug. 17, 2017) (Report and Recommendation, J. Roy S. Payne, Dkt. 129) because objecting to personal jurisdiction was not enough to preserve a venue challenge.
In its complaint, MyMail alleged that venue was proper in the Eastern District of Texas because Yahoo was subject to personal jurisdiction. In its answer, Yahoo denied that venue was proper “for the reasons set forth in the Complaint.” After the Supreme Court issued its TC Heartland decision, Yahoo moved to dismiss for improper venue, arguing that it had preserved its venue objection. Magistrate Judge Payne disagreed, noting that Yahoo’s specific “objection was based solely on the argument this District does not have personal jurisdiction over Yahoo.” Therefore, Magistrate Judge Payne concluded, by effectively acknowledging that venue was proper on other grounds, Yahoo had waived its improper venue defense.
In another case, the Southern District of Ohio granted Ranir’s motion to dismiss for improper venue in Procter & Gamble Company v. Ranir, LLC, 1-17-cv-00185 (S.D. Ohio Aug. 17, 2017) (Order, Judge Timothy S. Black, Dkt. 36). The court concluded that the TC Heartland decision applies to all open patent infringement cases and that objecting to personal jurisdiction is not necessary to challenge venue.
In March 2017, prior to the Supreme Court issuing its TC Heartland decision, Procter & Gamble (“P&G”) filed a complaint alleging that venue was proper because the Southern District of Ohio has personal jurisdiction over Ranir. A few days later, P&G filed a motion for preliminary injunction. Ranir promptly moved to dismiss, arguing that venue was improper because it is incorporated in Delaware and has its principal place of business in Michigan, not Ohio. P&G responded by arguing that the TC Heartland decision did not apply retroactively to the case, that P&G’s preliminary injunction motion should be decided before Ranir’s improper venue motion, and that Ranir had waived its improper venue defense by not challenging personal jurisdiction in its motion to dismiss.
The court granted Ranir’s motion to dismiss, holding in key part that (1) the TC Heartland decision applies retroactively to all open cases, regardless of whether a complaint was filed prior to the decision being handed down (“The fact that P&G filed this case prior to the Supreme Court’s decision in TC Heartland does not mean it may proceed under an improper theory of venue.”); (2) courts must resolve venue before “addressing the merits of any claim, including a preliminary injunction;” and (3) the fact that Ranir did not object to personal jurisdiction is not the same as Ranir being deemed to “reside” in the district for purposes of venue (“A defendant’s waiver of personal jurisdiction can only ‘establish’ venue if venue is proper everywhere the defendant is subject to personal jurisdiction.”).