InVue Sec. Prods. v. Mobile Techs., Inc.
United States District Court for the Western District of North Carolina, Charlotte Division
August 9, 2017, Decided; August 9, 2017, Filed
ORDER GRANTING MOTION FOR LEAVE TO CONDUCT VENUE DISCOVERY
THIS MATTER is before the Court on "Plaintiff's Motion for Leave to Conduct Venue Discovery" (document #16) filed on July 11, 2017.
As explained by the Honorable Max O. Cogburn, Jr. in his Order dated July 3, 2017,
While TC Heartland LLC v. Kraft Foods Grp. Brands LLC, U.S. , 137 S. Ct. 1514, 1521, 197 L. Ed. 2d 816 (2017) makes clear that venue is determined under Section 1400(b), the standard for determining whether a defendant has a "regular and established business" under that provision appears to remain unchanged. As a sister court recently held post-TC Heartland,
whether a defendant has a "regular and established business" is "whether the corporate defendant does its business in that district through a permanent and continuous presence there," and is not a question of whether it has a "fixed physical presence in the sense of a formal office or store."
iLife Techs., Inc. v. Nintendo of Am., Inc., 3:13-CV-04987, 2017 U.S. Dist. LEXIS 98698, 2017 WL 2778006, at *5 (N.D. Tex. June 27, 2017) [*2] (citing In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985)). If defendant does pursue dismissal or transfer, the Court would direct the parties' attention to this particular inquiry.
District courts have broad discretion to allow discovery concerning jurisdiction and venue pursuant to Federal Rule of Civil Procedure 26. See Mylan Labs, Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 2003). Discovery related to venue should be allowed unless the venue claims appear to be clearly frivolous. See Rich v. KIS Cal., Inc., 121 F.R.D. 254, 259 (M.D.N.C. 1988). Where issues of jurisdiction or venue are unclear, the Court may order discovery directed towards those issues alone. See e.g., Patent Rights Protection Group, LLC v. Video Gaming Technologies, Inc., 603 F.3d 1364, 1372 (Fed. Cir. 2010) (district court abused its discretion in denying plaintiff jurisdictional discovery); Nuance Communications, Inc. v. Abby Software House, 626 F.3d 1222, 1236 (Fed. Cir. 2010) (finding district court abused its discretion in denying plaintiff jurisdictional discovery). Applying those legal principles, the Court concludes that Plaintiff is entitled to conduct limited venue discovery as outlined below.
Accordingly, Plaintiff's Motion is GRANTED and it is hereby ORDERED that InVue has sixty (60) days from the date of this Order to conduct discovery subject to the Federal Rules of Civil Procedure related to venue. Discovery shall be confined to venue issues on the following matters for the time period from 2013 to the present for MTI and any MTI affiliate (referred [*3] to collectively below as "MTI"):
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2017 U.S. Dist. LEXIS 125693 *
InVue Security Products Inc., Plaintiff, v. Mobile Tech, Inc. d/b/a Mobile Technologies Inc. and MTI, formerly known as Merchandising Technologies Inc., Defendant.
Prior History: Invue Sec. Prods. v. Mobile Tech, Inc., 2017 U.S. Dist. LEXIS 102692 (W.D.N.C., July 3, 2017)
discovery, venue, customers, district court, employees, entities, products, training, established business, conducting business, potential customer, requests, parties, regular, abused