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In re Bigcommerce, Inc.

United States Court of Appeals, Federal Circuit

May 15, 2018

In re: BIGCOMMERCE, INC., Petitioner In re: BIGCOMMERCE, INC., Petitioner

          On 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 Gilstrap.

          Mark A. Lemley, Durie Tangri LLP, San Francisco, CA, for petitioner. Also represented by Clement Roberts, Timothy C. Saulsbury.

          Brett 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.

          Before Reyna, Linn, and Hughes, Circuit Judges.

         ON PETITION

          ORDER

          Linn, Circuit Judge.

         These 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.

         Background

         Respondents 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.

         During 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.

         In 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) ("Diem Order").

         In 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 ...


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