In re: BIGCOMMERCE, INC., Petitioner In re: BIGCOMMERCE, INC., Petitioner
Petition for Writ of Mandamus to the United States District
Court for the Eastern District of Texas in Nos.
6:17-cv-00186-JRG-JDL, 2:17-cv-00160-JRG-RSP, Judge J. Rodney
A. Lemley, Durie Tangri LLP, San Francisco, CA, for
petitioner. Also represented by Clement Roberts, Timothy C.
Rismiller, Husky Finch, St. Louis, MO, for respondent Diem
LLC, in 18-120.
Timothy Devlin, Devlin Law Firm, Wilmington, DE, for
respondent Express Mobile, Inc., in 18-122. Also represented
by Robert Dean Kiddie, Jr.
Reyna, Linn, and Hughes, Circuit Judges.
petitions each seek a writ of mandamus, challenging the
United States District Court for the Eastern District of
Texas's orders denying motions to dismiss Case No.
6:17-cv-00186-JRG-JDL and transfer Case No.
2:17-cv-00160-JRG-RSP for improper venue under 28 U.S.C.
§ 1406(a). Because a domestic corporation incorporated
in a state having multiple judicial districts
"resides" for purposes of the patent-specific venue
statute, 28 U.S.C. § 1400(b), only in the single
judicial district within that state where it maintains a
principal place of business, or failing that, the judicial
district in which its registered office is located, and
because Petitioner BigCommerce, Inc.
("BigCommerce") does not "reside" in the
Eastern District of Texas, the petitions are granted.
in these cases, Diem LLC and Express Mobile, Inc., each filed
patent infringement suits against BigCommerce in the District
Court for the Eastern District of Texas. BigCommerce is
incorporated in the State of Texas and lists its registered
office as being situated in Austin, Texas, where it is also
headquartered. Austin lies in the Western District of Texas.
It is undisputed that BigCommerce has no place of business in
the Eastern District of Texas.
the discovery phase of the cases, the Supreme Court issued
its decision in TC Heartland LLC v. Kraft Foods Group
Brands LLC, 137 S.Ct. 1514, 1521 (2017), which
reaffirmed that a domestic defendant corporation
"resides" under § 1400(b) only in its state of
incorporation. Soon thereafter, BigCommerce moved to dismiss
Diem's case and transfer Express Mobile's case,
arguing that under the Court's decisions in TC
Heartland and Stonite Products Co. v. Melvin Lloyd
Co., 315 U.S. 561 (1942), it resides only in the Western
District of Texas.
Diem's case, the magistrate judge recommended denying
BigCommerce's motion, concluding that the objection had
been waived under Federal Rules of Civil Procedure 12(h) and
12(g)(2). The district court adopted the magistrate
judge's recommendation, but additionally concluded that
even if the defense had not been waived, venue in the Eastern
District of Texas would still be proper. In doing so, it
explained that "a domestic corporation resides in the
state of its incorporation and if that state contains more
than one judicial district, the corporate defendant resides
in each such judicial district for venue purposes."
Diem LLC v. BigCommerce, Inc., No. 6:17-cv-00186,
2017 WL 3187473, at *2 (E.D. Tex. July 26, 2017)
Express Mobile's case, the magistrate judge issued an
order denying BigCommerce's motion to transfer, stating
that the district court had "already considered and
rejected" BigCommerce's arguments in the Diem
Order and "Defendant has articulated no reason to
distinguish this case from that earlier ruling."
Express Mobile, Inc. v. BigCommerce, Inc., No.
2:17-cv-00130, slip op. at 1 ...