August 21, 2018

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Venue Cannot Be Bootstrapped to a Defendant that Only “Works Closely” with a Resident Corporate Relative Co-Defendant

Further to our ongoing coverage of post-TC Heartland patent litigation, in a recent case in the Western District of Wisconsin, the court granted defendants’ motion to transfer for improper venue. In doing so, it rejected the plaintiff’s contention that venue can be proper where one corporation “works closely” with another corporation resident in the jurisdiction.

In Unity Opto Technology Co. Ltd. v. Lowe’s Home Centers LLC and LG Sourcing, Inc., 18-cv-27-jdp (W.D. Wis.) (May 4, 2018), co-defendant Lowe’s Home Centers has a place of business in the district, namely a physical store located in Plover, Wisconsin. However, co-defendant LG Sourcing does not own, lease, maintain, or operate any facilities in the district, nor does LG Sourcing employ any residents that reside in the district either.

Although LG Sourcing is a subsidiary of Lowe’s and that both companies collaborate on common matters, the court determined that is not sufficient to treat defendants as interchangeable for the purpose of determining whether each has a regular place of business in the district.  The plaintiff did not cite any authority to show that it was appropriate to pierce the corporate veil in this way.  Additionally, the plaintiff did not identify any reason to believe that discovery would reveal that LG Sourcing has a regular and established place of business in the district.

The plaintiff also argued that the court should keep the case because the Western District of Wisconsin resolves matters more expeditiously than its alternative venue, the Western District of North Carolina.  The court was not persuaded, and concluded that “the relative speed of the courts would not be a sufficient justification for keeping the case.”  Accordingly, given the lack of venue, the court granted a transfer to the Western District of North Carolina.

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About this Author

Andrew H. DeVoogd, Mintz Levin, Intellectual Property Litigation Lawyer, International Trade Commission Investigations attorney
Associate

Drew focuses his intellectual property practice in patent litigation specifically in International Trade Commission Section 337 investigations. He has participated in all phases of high-stakes patent litigation in the ITC, including as part of the strategy and trial team at multiple ITC evidentiary hearings, and also has significant experience in patent litigation in the federal district courts. In addition, Drew helps clients protect and leverage IP rights to maximize their value through strategic counseling, and has participated in negotiating and drafting numerous...

617.348.1611
Anthony E. Faillaci, intellectual property Attorney, Mintz Levin Law Firm
Associate

Tony is an Associate in the firm’s Boston office. He has worked with a wide range of technologies including manufacturing, telecommunications, and software development.

Tony’s experience includes assisting in the preparation of patent applications and pre-suit diligence, including patent portfolio analysis; drafting infringement/non-infringement and validity/invalidity analyses; and providing technical and scientific advice to legal practitioners in ITC-337 investigations and US District Court matters. During law school, Tony served as the production editor of the Journal of Health & Biomedical Law.

617-348-1778