On November 15, 2017, the Federal Circuit ruled that the U.S. Supreme Court's decision in TC Heartland was an intervening change in the law that excuses waiver of venue objection. In re Micron Tech., Inc., No. 2017-138 (Fed. Cir. Nov. 15, 2017). Harvard College filed a patent infringement suit against Micron and Micron filed a 12(b)(6) motion to dismiss for failure to state a claim but failed to object to venue under 12(b)(3). Subsequent to the TC Heartland decision, Micron filed a 12(b)(3) motion for improper venue. The federal district court of Massachusetts denied the motion concluding that under FRCP 12(g)(2) and (h)(1)(A), Micron had waived its venue defense and TC Heartland was not a change of law that would make the waiver rules inapplicable. Micron filed a writ of mandamus to the Federal Circuit requesting reversal of the district court's order, dismissal of the suit for improper venue or transfer to the Delaware or Idaho.
In granting Micron's petition, the Federal Circuit concluded that TC Heartland was an intervening change of law and therefore, the waiver rules were inapplicable. The Court reasoned that for FRCP 12(g)(2) to apply, and for the unmade venue defense to be waived under FRCP 12(h)(1)(A), the venue defense had to be "available" to the defendant at the time the 12(b) motion is filed, and such venue objection was unavailable until TC Heartland. Full text of the order is available here.
In granting Micron's petition, the Federal Circuit concluded that TC Heartland was an intervening change of law and therefore, the waiver rules were inapplicable. The Court reasoned that for FRCP 12(g)(2) to apply, and for the unmade venue defense to be waived under FRCP 12(h)(1)(A), the venue defense had to be "available" to the defendant at the time the 12(b) motion is filed, and such venue objection was unavailable until TC Heartland. Full text of the order is available here.
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