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In re Oath Holdings, Inc.

Mandamus Writ Orders District Court to Entertain Post-TC Heartland Venue Motion

In re Oath Holdings, Inc., __ F.3d __, 2018 WL 5930405 (Fed. Cir. Nov. 14, 2018) (Per curiam: Dyk, Reyna, Taranto) (E.D.N.Y.: Glasser) (4 of 5 stars)

Fed Cir issues mandamus writ, instructing district court to either dismiss or transfer case for improper venue. The district court abused its discretion in holding that Oath waived the issue when it filed (in July 2016) a Rule 12(b) motion without raising venue, and when it admitted venue in its answer (in January 2017). Both the Rule 12(b) motion and the answer were filed prior to the May 22, 2017 issuance of TC Heartland, 137 S. Ct. 1514 (2017). Per Micron, 875 F.3d 1091 (Fed. Cir. 2017), venue was not a defense available to Oath before TC Heartland; Oath filed a venue motion 22 days after the Supreme Court’s opinion. The Fed Cir’s opinion reasons that the district court, in these circumstances, had insufficient justification for holding that Oath waited too long to object to venue. That Micron applied First Circuit law, and the Eastern District of New York is in the Second Circuit, did not support the district court’s refusal to entertain Oath’s venue motion. The opinion further notes that nothing in Oath’s conduct before the district court suggested that it was taking a “wait-and-see” approach to venue, as Micron contemplated with disfavor. The opinion also notes that the EDNY litigation was “nowhere close to trial” at the time of Oath’s venue motion, and even today is still awaiting a claim construction order.

The opinion notes that this was Oath’s second petition for mandamus on the venue issue. The first was denied with a suggestion that Oath file a motion for reconsideration in view of Micron. Oath filed such a motion; the district court denied it, leading to a second mandamus petition and the present order.

KEYWORDS: MANDAMUS; VENUE; WAIVER