United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Unity Opto Technology Co., Ltd. is suing defendants
Lowe's Home Centers, LLC and L G Sourcing, Inc. for
infringement of four patents that relate LED light fixtures.
Defendants have moved to transfer or dismiss the case under
28 U.S.C. § 1406 for improper venue or, in the
alternative, to transfer the case under 28 U.S.C. §
1404. Dkt. 17. For the reasons explained below, the court
will grant the motion to transfer under § 1406.
case such as this one brought under the Patent Act, venue is
proper in a judicial district if the defendant: (1)
“resides” in that district; or (2) “has
committed acts of infringement” and has “a
regular and established place of business” in that
district. 28 U.S.C. § 1400(b); Fourco Glass Co. v.
Transmirra Prods. Corp., 353 U.S. 222, 229 (1957). This
court has held that the plaintiff has the burden of proving
that venue is proper under § 1400(b), Niazi v. St.
Jude Med. S.C., Inc., No. 17-cv-183, 2017 WL 5159784, at
*2-3 (W.D. Wis. Nov. 7, 2017), and neither side challenges
that conclusion, so there is no need to consider that
does not contend that either defendant “resides”
in the Western District of Wisconsin, so the court need not
consider that question either. And the parties assume that
Unity has adequately alleged that both defendants have
committed acts of infringement in this district. The issue is
whether both defendants have “a regular and established
place of business” here.
concede that Lowe's Home Centers has a place of business
in this district in the form of a retail store in Plover,
Wisconsin. But defendants deny that L G Sourcing has a place
of business here and they contend that the case should be
transferred to the Western District of North Carolina as to
both defendants because venue is proper there as to both
defendants and it would be inefficient to sever the case.
Unity does not deny that venue would be proper in North
Carolina and it does not object to defendants' request to
transfer the case as to both defendants if venue is not
proper as to L G Sourcing. So the only question is whether L
G Sourcing has “a regular and established place of
business” in the Western District of Wisconsin.
Court of Appeals for the Federal Circuit recently provided
guidance on the question of how district courts should
determine whether a defendant has a regular and established
place of business in a particular district. In re Cray
Inc., 871 F.3d 1355 (Fed. Cir. 2017). The court
identified three requirements for satisfying § 1400(b):
(1) there must be a physical place in the district; (2) it
must be a regular and established place of business; and (3)
it must be the place of the defendant. If any statutory
requirement is not satisfied, venue is improper under §
1400(b). Cray, 871 F.3d at 1360.
does not dispute the declaration of David Green, the vice
president of L G Sourcing, that L G Sourcing “does not
own, lease, maintain, or operate any facilities in the
Western District of Wisconsin” and “does not have
any employees who reside” here. Dkt. 18, ¶¶
8-9. Instead, Unity's position is that the retail store
for Lowe's Home Centers should qualify as a place of
business for L G Sourcing because of the close relationship
between the two companies.
relies on the following allegations for treating both
defendants as the same for the purpose of determining whether
L G Sourcing has a place of business in this district:
• both defendants are subsidiaries of Lowe's
• L G Sourcing sources products for Lowe's Home
• Lowe's Home Stores “must work closely with
[L G] Sourcing to monitor supply chain and manage customer
specifications, monitor supplier product performance, and
address product quality issues so that its warehouse
inventory is continuously stocked, ” Dkt. 28, at 7;
• a job announcement for “Lowes” shows that
the company is seeking a “millwork specialist” in
• Unity's infringement allegations against both
defendants relate to the same patents and the ...