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JPW Industries, Inc. v. Olympia Tools International, Inc.

United States District Court, M.D. Tennessee, Nashville Division

October 10, 2017

JPW INDUSTRIES, INC., Plaintiff,
v.
OLYMPIA TOOLS INTERNATIONAL, INC., Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE AND TRANSFERRING CASE UNDER 28 U.S.C. § 1406(A)

          JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE.

         The cause is before the Court on Defendant Olympia Tools, International's Motion for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) for Dismissal Based on Improper Venue, filed June 1, 2017. (ECF No. 31.) The Court has considered the motion, as well as Plaintiff JPW Industries, Inc.'s Response (ECF No. 44), Olympia's Reply (ECF No. 50), Olympia's Supplemental Brief in Support (ECF No. 63), JPW's Supplemental Response Brief (ECF No. 74), and Olympia's Reply to JPW's Supplemental Brief. (ECF No. 77.) For the reasons discussed below, the Court finds that, pursuant to 28 U.S.C. § 1400(b), venue is not proper in the Middle District of Tennessee. Additionally, pursuant to 28 U.S.C. § 1406(a) and in the interest of justice, the case shall be transferred to the Central District of California. Accordingly, Defendant's Motion for Dismissal Based on Improper Venue is DENIED.

         I. BACKGROUND

         A. Factual Background

         The action arises out of allegations by Plaintiff JPW Industries (“JPW”) against Defendant Olympia Tools International (“Olympia”) for infringement of United States Patent 9, 079, 464 (“the '464 patent”). Plaintiff JPW is a Washington corporation with a principal place of business in Tennessee. (Compl. ¶ 5, ECF No. 1.) Defendant Olympia is a California corporation with a principal place of business in California. (Def.'s Ans., ECF No. 20 at PageID 53.)

         This action involves alleged infringement of the following patent on a portable vise, invented by Timothy Onello and Charles Weber and assigned to Plaintiff:

U.S. Patent Number

Issued

Patent

9, 079, 464

July 14, 2015

Portable Work Holding Device and Assembly

(Id. ¶¶ 11-12; U.S. Patent 9, 079, 464, ECF No. 1-1.) Plaintiff alleges that Defendant's OLYMPIA HITCH VISE (Model No. 38-652) infringes one or more of the claims recited in the patent. (Compl. ¶¶ 13-15). Plaintiff asserts that at least claims 1, 3, 5-8, 12, and 21-25 are infringed. (Id. at ¶ 15.) Plaintiff sells a competing portable vise, ATV: ALL TERRAIN VISE, and has entered two copies of the device into evidence as Exhibits 1 and 2.

         B. Procedural Background

         Plaintiff filed the Complaint on December 6, 2016, in the Middle District of Tennessee. (ECF No. 1.) On February 24, 2017, Defendant filed its Answer, denying infringement and raising affirmative defenses including invalidity and prosecution history estoppel. (Def.'s Ans., ECF No. 20.) On March 9, 2017, the parties held an initial case management conference before Magistrate Judge Barbra Holmes, (ECF No. 23), and on March 16, 2017, Magistrate Judge Holmes entered an Initial Case Management Order. (ECF No. 24.)

         On May 25, 2017, the parties entered a Joint Claim Construction Statement (ECF No. 30), identifying eight claims whose terms the parties disputed. On June 9, 2017, both parties filed Opening Claim Construction Briefs. (ECF Nos. 35-36.) On September 6, 2017, the Court held a Claim Construction Hearing in Nashville, Tennessee. At the hearing, the Court heard arguments from both parties regarding interpretation of the terms listed in the Joint Claim Construction Statement. (ECF No. 30.) The Court entered an Order Following Claim Construction Hearing on October 5, 2017. (ECF No. 87.)

         On June 1, 2017, Defendant filed the instant Motion for Judgment on the Pleadings for Dismissal Based on Improper Venue. (ECF No. 31.) On June 29, Plaintiff filed a response to the motion. (ECF No. 44.) On July 11, 2017, Defendant filed a reply. (ECF No. 50.) On July 19, 2017, the Court ordered supplemental briefing on Defendant's motion. (ECF No. 56.) In that order, the Court found that Defendant had preserved the issue of venue by objecting to venue in its answer, and that Defendant had not waived venue after preserving it. (ECF No. 56 at PageID 611.) The Court also ordered supplemental briefing on whether Defendant maintains a “regular and established place of business” in this district, in light of Raytheon Co. v. Cray, Inc., No 2:15-CV-01554-JRG, 2017 WL 2813896 (E.D. Tex. June 29, 2017). (Id. at Page IDs 611-12.) On August 22, 2017, Plaintiff filed a Supplemental Brief opposing Defendant's Motion. (ECF No. 74.) On August 24, 2017, Defendant filed a Reply to Plaintiff's Supplemental Brief. On September 21, 2017, the United States Court of Appeals for the Federal Circuit decided a petition for writ of mandamus from Raytheon v. Cray in which the Federal Circuit reversed the Eastern District of Texas and set forth a three-element test for evaluating whether a corporation has a “regular and established place of business” under 28 U.S.C. § 1400(b). In re: Cray, Inc, No. 2017-129, 2017 WL 4201535 at *4 (Fed. Cir. Sept. 21, 2017).

         II. LEGAL STANDARD

         A. ...


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