When a dispute over payment under the contract arose, J-Crew sued Atlantic Marine in the Western District of Texas, invoking the court’s diversity jurisdiction. Atlantic Marine moved to dismiss the suit, arguing that the forum selection clause rendered venue in the Western District of Texas “wrong” pursuant to 28 U.S.C. § 1406(a) and “improper” under Federal Rule of Civil Procedure 12(b)(3). In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under § 1404(a).

The plaintiffs sought relief under (i) the Video Privacy Protection Act; (ii) California’s Consumer Records Act; (iii) California’s Unfair competition Law; and (iv) Texas’ Deceptive Trade Practices Act. Shortly after the plaintiffs filed this action, Microsoft filed a motion to dismiss pursuant to 28 U.S.C. § 1406(a) and Rule 12(b)(3), (6) or, in the alternative to Transfer Venue to the Western District of Washington Pursuant to 28 U.S.C. § 1406(a) or §1404(a).Microsoft pointed that the plaintiffs had entered into contracts, the plaintiffs had reviewed the terms of conditions, and that according to the terms and conditions, the plaintiffs had agreed to submit their disputes to the exclusive jurisdiction and venue of state and federal courts of King County, Washington. Accordingly, Microsoft argued that the action should be transferred to the Western District of Washington.

The US Court of Appeals for the Federal Circuit, on petition for writ of mandamus, vacated the district court’s transfer order and remanded the transfer to be considered under the clarified parameters of Fed. R. Civ. P. 4(k)(2) and 28 U.S.C. § 1404. In re: Stingray IP Solutions, LLC, Case No. 2023-102 (Fed. Cir. Jan. 9, 2023) (Lourie, Taranto, Stark, JJ.)Stingray filed patent infringement suits in the US District Court for the Eastern District of Texas against TP-Link, a company headquartered and organized in China. TP-Link moved to transfer to the Central District of California (CDCA) under 28 U.S.C. § 1406 citing an alleged lack of personal jurisdiction that Rule 4(k)(2) did not cure because TP-Link would be amenable to suit in the CDCA. TP-Link also moved for transfer under 28 U.S.C. § 1404(a). The district court granted the motion to transfer under § 1406 based on the rationale that TP-Link was amenable to suit in the CDCA and relying on affirmative reservations made by TP-Link that the CDCA had proper jurisdiction and venue. The district court denied TP-Link’s § 1404(a) motion as moot following the transfer. Stingray filed a mandamus petition asking the Federal Circuit to determine whether TP-Link’s unilateral, post-suit consent to personal jurisdiction in another state defeated application of Rule (4)(k)(2).The Federal Circuit first determined that mandamus review was appropriate in this case in order to resolve the question of whether a defendant can defeat personal jurisdiction under Rule 4(k)(2) by unilaterally consenting to suit in a different district, a jurisdictional question

The Court found all other factors neutral or slightly weighing against transfer, and concluded that the “specific facts of this particular case” warranted a transfer.STRATOSAUDIO, INC. v. Hyundai Motor AmericaandVolkswagen Group of America, Inc., Nos. 6:20-CV-01125, 6:20-CV-01131 (W.D. Tex.) (J., Albright): Motions to Dismiss pursuant to 28 U.S.C. §§ 1400(b) and 1406(a)In STRATOSAUDIO, Defendants moved to dismiss Plaintiff’s suit for improper venue pursuant to 28 U.S.C. §§ 1400(b) and 1406(a). Judge Albright denied the motion, finding that both Defendants have a “regular and established place of business” in the Western District of Texas.

[22] Then, relying upon mandatory language contained in the forum selection clause (e.g., “shall”), the court held the clause to be mandatory and enforceable.[23] As such, the case was transferred to the Northern District of Oklahoma pursuant to 28 U.S.C. § 1406(a).[24]Thus, where parties to an agreement have included a mandatory venue provision identifying a Texas venue, New Mexico courts will likely enforce the provision and either dismiss the case or transfer the case to the proper venue in Texas pursuant to 28 U.S.C. § 1406(a).B. Applying Texas’ Choice of Law RulesOnce in Texas, the parties are not guaranteed application of Texas law.

2017)") and these decisions have provided some illustrative district court decisions showing how these lower courts have understood and adopted whatever rubrics their judicial superiors have enunciated (see "More Views on Venue -- Federal Circuit Addresses In re Micron Fallout"). The latest head-turning wrinkle in the venue question comes from a decision denying Defendant's venue-related motions by Judge Haywood S. Gilliam, Jr., U.S. District Court Judge for the Northern District of California, in Plexxikon Inc. v. Novartis Pharmaceuticals Corp. Defendant put two venue-related motions before the District Court: a motion to dismiss (or in the alternative transfer) under 28 U.S.C. § 1406 and a motion to transfer under 28 U.S.C. § 1400(b). Citing the Supreme Court's decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514, 1519 (2017), the District Court's opinion acknowledges that venue is proper either "in the judicial district where the defendant resides," i.e., its state of incorporation (in this case, Delaware) or "where the defendant has committed acts of infringement and has a regular and established place of business."

Although Micron moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, it did not move to change venue under Rule 12(b)(3). After TC Heartland was decided, however, Micron filed motion to dismiss or transfer for improper venue under 28 U.S.C. § 1406(a), asking the District Court to dismiss or in the alternative to transfer the lawsuit to District of Delaware (where Micron is incorporated) or the District of Idaho (Micron's principle place of business). The District Court denied Micron's motion on grounds that objection to venue had been waived, and that the Supreme Court's TC Heartland decision was not a "intervening change in the law" that excused Micron's failure to move earlier.

Case 2017-129 (September 21, 2017) The panel rules that the district court misinterpreted the scope and effect of Circuit precedent in determining that Cray maintained “a regular and established place of business” in the Eastern District of Texas within the meaning of 28 U.S.C. § 1400(b). Accordingly, the court’s refusal to transfer a case pursuant to 28 U.S.C. § 1406(a) was an abuse of discretion, and the Circuit grants Cray’s petition for a writ of mandamus and directs the case to be transferred to the Western District of Wisconsin. This petition arises from a patent infringement action filed by Raytheon against Cray, which sells advanced supercomputers that Raytheon accuses of infringement.

The court denied the motions under then-existing law. On June 3, roughly two weeks after TC Heartland, (and with a trial date set for the end of July), defendants filed motions to transfer under 28 U.S.C. § 1406 for improper venue and to stay pending resolution of venue. In Judge Payne’s decision denying both motions, he first acknowledged that venue is a defense that, if available, is waived if it is not raised at the outset of the case pursuant to Federal Rules of Civil Procedure 12(h)(1)(A) and 12(g)(2).

Citing the parties’ forum selection clause, AMC sought to dismiss J-Crew’s complaint or, in the alternative, transfer it to a federal district court in Virginia. AMC relied on Rule 12(b)(3) of the Federal Rules of Civil Procedure, which permits dismissal for “improper venue,” and 28 U.S.C. § 1406(a), which requires dismissal or transfer of a lawsuit “laying in the wrong division or district.”In the alternative, AMC moved to transfer the lawsuit under 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” In response, given that the parties’ subcontract did not contain a choice of law provision, J-Crew strategically dismissed its Federal Miller Act payment bond claim so that only its Texas-based claims remained.