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Infogation Corp. v. HTC Corp.

United States District Court, S.D. California

July 5, 2017

INFOGATION CORP., Plaintiff,
v.
HTC CORPORATION; and HTC AMERICA, INC., Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR IMPROPER VENUE [DOC. NO. 96.]

          MARILYN L. HUFF, DISTRICT JUDGE UNITED STATES DISTRICT COURT

         On June 12, 2017, Defendants HTC Corporation and HTC America, Inc. filed a motion to dismiss the action for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). (Doc. No. 96.) On June 26, 2017, Plaintiff Infogation Corp. filed an opposition to Defendants' motion to dismiss. (Doc. No. 98.) On June 28, 2017, the Court took the matter under submission. (Doc. No. 99.) On July 3, 2017, Defendants filed their reply. (Doc. No. 101.) For the reasons below, the Court denies Defendants' motion.

         BACKGROUND

         On July 27, 2016, Plaintiff InfoGation filed a complaint for patent infringement against Defendants HTC Corp. and HTC America, alleging infringement of U.S. Patent No. 6, 292, 743.[1] (Doc. No. 1.) Specifically, Plaintiff alleges that Defendants' smartphones, which run the Android operating system and can connect to a Google Maps navigation server through a wireless carrier's network data, infringe, either literally or through the doctrine of equivalents, claim 15 of the '743 patent. (Id.)

         On November 1, 2016, Defendants filed an answer and counterclaims to Plaintiff's complaint. (Doc. No. 21) In the answer, Defendants denied that venue was proper in this district. (Id. ¶ 7.) On November 21, 2016, Defendants filed a motion to stay the action pending resolution of a later-filed declaratory judgment action pending in the Northern District of California: Google Inc. v. InfoGation Corp., No. 3:16-cv-05821-VC (N.D. Cal., filed Oct. 7, 2016). (Doc. No. 38.) On November 22, 2016, the Court issued a scheduling order for the action setting forth all dates leading up to trial. (Doc. No. 39.) On December 21, 2016, the Court denied without prejudice Defendants' motion to stay. (Doc. No. 46.)

         On December 2, 2016, Plaintiff served its infringement contentions. (Doc. No. 89-1, Apreotesi Decl. Ex. A.) On January 27, 2017, Defendants served their invalidity contentions. (Id. Ex. B.) On February 24, 2017, Defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on the basis that the '743 patent is invalid under 35 U.S.C. §101. (Doc. No. 49.) On March 27, 2017, the Court denied Defendants' motion for judgment on the pleadings. (Doc. No. 63.) On March 27, 2017, Defendants served amended invalidity contentions. (Doc. No. 82-1, Pennington Decl. Ex. F.)

         On March 30, 2017, Plaintiff filed a separate complaint for patent infringement against Defendants, alleging infringement of U.S. Patent No. 9, 528, 843. (17-cv-646-Doc. No. 1.) On April 17, 2017, Defendants filed a motion to stay the action pending inter partes review proceedings as to the '743 patent. (Doc. No. 70.) On May 2, 2017, the parties filed a joint motion to consolidated Case No. 17-cv-646 with Case No. 16-cv-1902 pursuant to Federal Rule of Civil Procedure 42(a). (Doc. No. 76.)

         On May 5, 2017, the Court issued a claim construction order, construing terms from the '743 patent. (Doc. No. 78.) On May 9, 2017, the Court granted the parties' joint motion to consolidate, consolidated Case No. 17-cv-646 with Case No. 16-cv-1902, and issued an amended scheduling order for the consolidated action. (Doc. No. 81.) On June 7, 2017, the Court issued an order resolving a dispute between the parties regarding Plaintiff's disclosure of its asserted priority date for the '743 patent. (Doc. No. 91.) By the present motion, Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. §§ 1400(b), 1406(a) to dismiss the consolidated action for improper venue or, in the alternative, to transfer the action to either the Western District of Washington or the Northern District of California. (Doc. No. 96-1 at 1.)

         DISCUSSION

         I. Legal Standards

         28 U.S.C. § 1406(a) provides: “The 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.” Under Federal Rule of Civil Procedure 12(b)(3), a party may move to dismiss an action for “improper venue.” In deciding a Rule 12(b)(3) motion, a court need not accept the pleadings as true and may consider facts outside the pleadings. Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004). Once a defendant raises an objection to venue, the plaintiff bears the burden of establishing that the selected venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979); Kaia Foods, Inc. v. Bellafiore, 70 F.Supp.3d 1178, 1183 (N.D. Cal. 2014).

         In patent infringement actions, venue is proper “in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b); see TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct. 1514, 1516 (2017). In TC Heartland, 137 S.Ct. at 1517, the Supreme Court recently reaffirmed its decision in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226 (1957), and held “that a domestic corporation ‘resides' only in its State of incorporation for purposes of the patent venue statute.”

         II. Analysis

         Defendants argue that the action should be dismissed for improper venue because Defendant HTC America neither “resides” nor “has a regular established place of business” in the Southern District of California. (Doc. No. 96-1 at 5-7.) In response, Plaintiff argues that Defendants waived ...


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