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In re HTC Corp.

United States Court of Appeals, Federal Circuit

May 9, 2018

In re: HTC CORPORATION, Petitioner

          On Petition for Writ of Mandamus to the United States District Court for the District of Delaware in No. 1:17-cv-00083-LPS, Chief Judge Leonard P. Stark.

          Yar Roman Chaikovsky, Paul Hastings LLP, Palo Alto, CA, for petitioner. Also represented by Philip Ou; John W. Shaw, Shaw Keller LLP, Wilmington, DE.

          Andres Healy, Susman Godfrey LLP, Seattle, WA, for respondents 3G Licensing, S.A., Koninklijke KPN N.V., Orange S.A. Also represented by Alexandra Giselle White, Houston, TX.

          Before Prost, Chief Judge, Wallach and Taranto, Circuit Judges.

          ORDER

          PROST, CHIEF JUDGE

         HTC Corporation petitions for a writ of mandamus directing the United States District Court for the District of Delaware to (a) vacate its December 18, 2017 order denying-in-part HTC Corporation's motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3); and (b) dismiss the complaint against HTC Corporation. 3G Licensing, S.A., Orange S.A., and Koninklijke KPN N.V. (collectively, "Respondents") oppose.

         In January 2017, Respondents filed their patent infringement suit against HTC Corporation, a Taiwanese corporation with its principal place of business in Taiwan, and its wholly owned U.S. based subsidiary, HTC America, Inc., a Washington corporation with its principal place of business in Seattle, Washington. In June 2017, after Respondents filed their second amended complaint, HTC Corporation and HTC America filed a motion to dismiss for improper venue pursuant to Rule 12(b)(3) or, in the alternative, to transfer the case to the United States District Court for the Western District of Washington pursuant to 28 U.S.C. §§ 1404(a) or 1406(a).

         In its December 18, 2017 order, the district court found that venue was not proper as to HTC America but was proper as to HTC Corporation. App. 1-7. Following the order, Respondents voluntarily dismissed their suit against HTC America without prejudice. HTC Corporation now files this mandamus petition seeking dismissal for improper venue.[1]

         Discussion

         A writ of mandamus is a drastic remedy available only in extraordinary circumstances. Such a writ may issue only where the following conditions are met: (1) the petitioner must have no other adequate means to attain the relief desired; (2) the petitioner must demonstrate a "clear and indisputable" right to the issuance of the writ; and (3) "even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

         I

         A party seeking mandamus must demonstrate that it has "no other adequate means to attain the relief [it] desires." Cheney, 542 U.S. at 380 (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). This requirement is "designed to ensure that the writ will not be used as a substitute for the regular appeals process." Id. at 380-81.

         The mandamus petition in this case is based on the denial of a motion to dismiss under Rule 12(b)(3) or, alternatively, to transfer under § 1406(a), for improper venue.[2] While this court has granted mandamus petitions based on the denial of motions to transfer under 28 U.S.C. § 1404(a) with some frequency, [3] we have done so less frequently with respect to petitions based on the denial of motions under § 1406(a) asserting improper venue. See In re Cray Inc., 871 F.3d 1355, 1367 (Fed. Cir. 2017); In re Micron Tech., Inc., 875 F.3d 1091, 1102 (Fed. Cir. 2017). This divergence, in part, relates to the first requirement for granting mandamus-that the mandamus petitioner have no other adequate means to attain the relief desired.[4]

         Unlike a defendant challenging the denial of a § 1404(a) transfer motion, [5] a defendant aggrieved by the denial of an improper-venue motion has an adequate remedy on appeal from a final judgment. Specifically, if after judgment venue is determined to have been improper, and the improper-venue objection was not waived, the appellants "will be entitled to assert it on appeal and, if the objection is sustained, obtain from [the appeals] court an order vacating the judgment . . . and directing the remand of the action to the [appropriate venue]." Gulf Research & Dev. Co. v. Leahy, 193 F.2d 302, 304-05 (3d Cir. 1951); see id. ("[A]n appeal in this action will be just as adequate as in any other case where an objection to jurisdiction or venue is overruled by the trial court and after a trial on the merits the objection is sustained on appeal from the final judgment." (footnote omitted)); Chi., R.I. & P.R. Co. v. Igoe, 212 F.2d 378, 381 (7th Cir. 1954) ("[A]ny judgment entered in the cause is a nullity, an error correctible on appeal."); cf. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 41-43 (1998) (indicating that a strict venue limitation, such as § 1391(a), "is sufficient to establish the substantial character of any violation, " making such a violation not harmless error under 28 U.S.C. § 2111). Given the availability of adequate relief on appeal, mandamus review of improper-venue decisions is generally inappropriate. See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 379-84 (1953) (holding that mandamus review of an improper-venue decision was inappropriate and noting it was not clear that an adequate remedy could not be afforded); Comfort Equip. Co v. Steckler, 212 F.2d 371, 374-75 (7th Cir. 1954) (denying mandamus review of an improper-venue motion); Gulf Research, 193 F.2d at 304-05 (denying mandamus review of an improper-venue motion in a patent case and stating that "an appeal in this action will be just as adequate as in any other case where an objection to jurisdiction or venue is overruled by the trial court and after a trial on the merits the objection is sustained on appeal from the final judgment" (footnote omitted)).

         Although Petitioner argues that it should "not be forced to litigate this case in an improper venue through a final judgment before it can contest venue via appeal, " Pet'r's Br. 6, the Supreme Court rejected this same argument in Bankers Life, explaining that "the extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial." Bankers Life, 346 U.S. at 383 (citations omitted); see also Comfort Equip., 212 F.2d at 375 ("If the correctness of [the judge's] ruling on the [improper-venue] motions to dismiss must await an appeal from the final disposition of the case on its merits in the district court, there is no unusual inconvenience or hardship."). Decisions of this court and the Third Circuit reflect that reasoning. See In re BP Lubricants USA Inc., 637 F.3d 1307, 1313 (Fed. Cir. 2011) ("To issue a writ [of mandamus] solely for th[e] reasons [that a defendant will be forced to undergo the cost of discovery and trial] would undermine the rare nature of its form of relief and make a large class of interlocutory orders routinely reviewable." (citing Bankers Life, 346 U.S. at 383)); Gulf Research, 193 F.2d at 304-05 ("The mere fact that the petitioners will be put to the inconvenience and expense of what may prove to be a wholly abortive trial is an argument which might be addressed to Congress in support of legislation authorizing interlocutory appeals but does not constitute ground for invoking mandamus power.").

         To be sure, while an appeal will usually provide an adequate remedy for a defendant challenging the denial of an improper-venue motion, there may be circumstances in which it is inadequate. We need not articulate such circumstances here, as Petitioner's only argument is that it should be able to avoid the inconvenience of litigation by having this issue decided at the outset of its case. This is insufficient, and there is no other indication that Petitioner cannot be afforded adequate relief on appeal.

         II

         A party seeking issuance of a writ of mandamus must also demonstrate that the right to the writ is clear and indisputable. Cheney, 542 U.S. at 381 (quoting Kerr, 426 U.S. at 403). Petitioner has failed to meet this burden.

         The district court in this case relied on Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 706 (1972), and § 1391(c)(3) to hold that HTC Corporation, as a foreign corporation, is subject to suit in any judicial district. App. 3. Petitioner argues that the district court erred in three ways: (1) by applying § 1391(c)(3) in a patent case; (2) by relying on Brunette, which interpreted a prior version of § 1391; and (3) by not applying the patent venue statute, § 1400(b). We see no error in the district court's analysis. As explained below, Petitioner's arguments are fully addressed by reaffirming the "long-established rule that suits against aliens are wholly outside the operation of all the federal venue laws, general and special." Brunette, 406 U.S. at 714.

         A

         The issue of whether the venue laws protect alien defendants is colored by a long statutory and judicial history, including two cases in which the Supreme Court directly addressed this same question. Id. at 707; In re Hohorst, 150 U.S. 653, 659 (1893).

         As explained in Brunette, the origins of the venue laws extend back to the Judiciary Act of 1789. Brunette, 406 U.S. at 708. The original venue restriction stated:

[N]o civil suit shall be brought before [district or circuit] courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he ...

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