from the United States District Court for the Western
District of Washington in No. 3:17-cv-05067-RBL, Judge Ronald
P. Walters, Lowe Graham Jones PLLC, Seattle, WA, argued for
A. Shah, Akin Gump Strauss Hauer & Feld LLP, Washington,
DC, argued for defendants-appellees. Also represented by Z.W.
Julius Chen, Rachel J. Elsby; Michael P. Kahn, Michael Nasser
Petegorsky, New York, NY.
Lourie, Mayer, and Reyna, Circuit Judges.
Aerosol Corporation appeals the decision of the United States
District Court for the Western District of Washington
granting 3M Company and GTA-NHT, Inc.'s motion to dismiss
for improper venue. 3M Company and GTA-NHT, Inc. subsequently
moved for attorneys' fees and double costs, arguing
Westech Aerosol Corporation filed a frivolous appeal. Because
the district court did not err in granting the motion to
dismiss, we affirm. We also deny the motion for
attorneys' fees and costs.
January 27, 2017, Appellant Westech Aerosol Corporation
("Westech") filed suit in the Western District of
Washington, alleging that Appellees 3M Company ("3M
Co.") and GTA-NHT, Inc., d/b/a Northstar Chemical
("Northstar") (collectively, "3M Co.")
infringed U.S. Patent No. 7, 705, 056 ("the '056
patent"). 3M moved to dismiss for failure to state a
claim, which prompted Westech to file an amended complaint.
3M again moved to dismiss for failure to state a claim. While
3M's second motion to dismiss was pending, the Supreme
Court issued its decision in TC Heartland LLC v. Kraft
Foods Group Brands LLC, 137 S.Ct. 1514 (2017), holding
that for purposes of the patent venue statute, 28 U.S.C.
§ 1400(b), a corporation "resides" only in its
state of incorporation. Id. at 1517.
light of the Supreme Court's ruling in TC
Heartland, 3M moved on May 25, 2017, to amend its
pending motion to dismiss to include an argument that venue
was improper in the Western District of Washington. The
district court granted the motion to amend, and 3M filed an
amended motion to dismiss on June 21, 2017, arguing that
neither 3M nor Northstar had a regular and established place
of business in the judicial district.
responded to the amended motion to dismiss by conceding
"that its original complaint does not assert facts that
support venue in this Court under the guidance of TC
Heartland." J.A. 453. Accordingly, in its response,
Westech sought leave to amend its complaint "to assert
facts sufficient under 28 U.S.C. § 1400(b)."
Id. Westech also argued in its response, inter
alia, that the presence of sales representatives and
3M's sales in Washington supported venue in the district
and that 3M had a "principal place of business" and
other business locations at various addresses in Washington.
filed a reply supported by a declaration stating that at the
time of the original complaint, 3M did not own, lease, use,
or maintain property at any of the locations identified in
Westech's response. The declaration, signed by a senior
manager in 3M's Real Estate Department, further stated
that 3M did not currently occupy any of the locations
identified by Westech. Westech moved to strike 3M's reply
and accompanying declaration because they discussed new
information raised for the first time in 3M's reply.
district court denied 3M's amended motion to dismiss
without prejudice. In addressing the venue issue, the court
agreed with 3M that a sales presence in the judicial district
did not, by itself, satisfy the patent venue statute. The
court, however, was persuaded that Westech could amend its
complaint to allege proper venue, and therefore granted
Westech leave to amend its complaint with a warning to do so
"consistent with its Rule 11 obligations." J.A.
filed its second amended complaint on September 6, 2017.
Instead of pleading facts to support proper venue, Westech
parroted § 1400(b):
Venue is proper in this judicial district pursuant to 28
U.S.C. § 1400(b) because Defendants have committed acts
of infringement in this judicial district and 3M has one or
more regular and established places of business in this
judicial district. Furthermore, on information and belief,
Defendants maintain contractual relationships with
distributors of the infringing products who are located in
this judicial district, Defendants have sales representatives
located in this judicial district, Defendants represent that
they sell products ...