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Allsop, Inc. v. Ambient Lighting, Inc.

United States District Court, W.D. Washington, Seattle

February 12, 2018

ALLSOP, INC., Plaintiff,


          The Honorable Richard A. Jones, United States District Judge.


         This matter comes before the Court on Defendant Ambient Lighting Inc.'s Motion to Dismiss or Transfer pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a). Dkt. # 21. Plaintiff Allsop, Inc. opposes the Motion. Dkt. # 26. For the reasons set forth below, the Court GRANTS Defendant's Motion.


         The following is taken from Plaintiff's Complaint, which is assumed to be true for the purposes of this motion to dismiss. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).

         On April 10, 2017, Plaintiff filed this action alleging that Defendant infringed U.S. Patent Nos. 8, 657, 461 and 8, 192, 044. Dkt. # 1 ¶¶ 19, 20. Plaintiff is a Washington corporation located in Bellingham, Washington. Defendant is a Delaware corporation. Its business address is in Brooklyn, New York. Dkt. # 1 ¶¶ 1, 2. In the Complaint, Plaintiff alleged that venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1) and 28 U.S.C. § 1400(b) because Defendant “resides in the Western District of Washington within the meaning of 28 U.S.C. § 1391(c).” Dkt. # 1 ¶ 5. On May 11, 2017, Defendant filed its Answer and Counterclaims to the Complaint. Dkt. # 10. In its Answer, Defendant stated that it “[did] not challenge venue in the Western District of Washington . . . [Defendant] submits that this district is not a convenient forum for [Defendant].” Dkt. # 10 ¶ 5.

         Defendant then filed this Motion, arguing that venue is no longer proper following the Supreme Court's decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct. 1514, 197 L.Ed.2d 816 (2017), and moved that the Court dismiss this action or in the alternative transfer it to the Eastern District of New York. Dkt. # 21.


         28 U.S.C. § 1406(a) provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” A defendant objecting to venue may file a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3). Pursuant to Federal Rule of Civil Procedure 12(h)(1), a venue defense under Rule 12(b)(3) is waived if the defendant fails to include it in a responsive pleading. Fed.R.Civ.P. 12(h)(1)(B).


         As a preliminary matter, Plaintiff argues that Defendant failed to comply with the meet-and-confer requirements of this Court's Standing Order. Plaintiff admits that the parties exchanged emails related to the motion, but did not conduct an in-person meeting, and that Defendant failed to include the required certification. This Court's Standing Order states that counsel contemplating the filing of a motion “shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” The Court has this requirement to minimize waste of judicial time and resources on issues that could be resolved amongst the parties. The Standing Order does not require that the meet and confer occur in person, only that it is preferable. While the Court construes the meet and confer requirement strictly, denying a motion to dismiss because of a failure to discuss these objections in person when both parties admit that the motion was discussed over email is not in keeping with the purpose of this type of requirement.

         a. Waiver

         Both parties refer to the Supreme Court's recent holding in TC Heartland in their arguments. The holding states that “as applied to domestic corporations, ‘reside[nce]' in [28 U.S.C.] § 1400(b) refers only to the State of incorporation.” TC Heartland LLC, 137 S.Ct. at 1517. Because this decision set out a new interpretation of section 1400(b), it created widespread disagreement over whether omission of this particular venue defense constituted a waiver of the defense of improper venue. In In re Micron Tech., Inc., 875 F.3d 1091 (Fed. Cir. 2017), the Federal Circuit endeavored to provide clarity regarding this issue. Finding that the holding in TC Heartland changed the controlling law, the Court concluded that the venue defense raised was not previously “available”, thus making the waiver rule of Rule 12(g)(2) and (h)(1)(A) inapplicable. In re Micron Tec., Inc., 875 F.3d at 1094. Where, as here, Rule 12(g)(2) and (h)(1)(A) do not apply, “a less bright-line, more discretionary framework” should be used for venue objections. Id.

         Plaintiff argues that Defendant waived its defense of improper venue by failing to assert the objection as part of its responsive pleading. See Fed. R. Civ. P. 12(h)(1). However, existing precedent from the Federal Circuit would have made a challenge to the validity of venue futile. The Court agrees that, “[w]hen a defense or objection is futile in the sense that the law bars the district court from adopting it to dismiss, to require the assertion of the defense or objection . . .would generally be to require the waste of resources, contrary to Rule 1.” In re Micron Tech., Inc., 875 F.3d at 1097. The Supreme Court recently held that the Federal Rules of Civil Procedure “are not all encompassing” and that there are “standard procedural devices trial courts around the country use every day in service of Rule 1's paramount command: the just, speedy, and inexpensive resolution of disputes.” Dietz v. Bouldin, 136 S.Ct. 1885, 1891, 195 L.Ed.2d 161 (2016). Here, where Defendant moved to dismiss within a short amount of time, Plaintiff makes no argument that Defendant unreasonably delayed the filing of its Motion until it became “convenient or advantageous for it to reap the benefits of the Supreme Court ruling, ” and the case is at the ...

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