Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nsixty, LLC v. uPost Media, Inc

United States District Court, S.D. Ohio, Western Division

August 22, 2017

NSIXTY, LLC, Plaintiff.
v.
uPOST MEDIA, INC, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE (Doc. 5); THEREBY TRANSFERRING THIS CASE TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA PURSUANT TO 18 U.S.C. SECTION 1406(a)

          Timothy S. Black, United States District Judge.

         This civil action is before the Court regarding Defendant's motion to dismiss for improper venue (Doc. 5) and the parties' responsive memoranda (Docs. 6, 7).[1]

         I. BACKGROUND

         This is a patent infringement case. On May 15, 2017, Plaintiff filed the Complaint alleging that Defendant is infringing Plaintiff's patents involved in video communications systems, including digital kiosks for recording messages that can be accessed through the internet. (Doc. 1).

         The Complaint alleges that Plaintiff is an Ohio corporation with a principal place of business in Ohio, and Defendant is a Nevada company with a principal place of business in Nevada. (Doc. 1 at ¶ 3-4). The Complaint alleges venue is proper in this district because “[Defendant] is subject to personal jurisdiction in this district and, therefore, ‘resides' in the Southern District of Ohio.” (Id. at ¶ 7).

         Defendant was served with the Complaint on May 17, 2017; its answer was initially due on June 7, 2017. (Doc. 4).

         On June 6, 2017, Christopher Austin, an attorney with a Las Vegas, Nevada, address, emailed David Cupar, Plaintiff's trial attorney. (Doc. 6-2 at 2). Mr. Austin stated that he had recently been retained by Defendant in connection with this case, was in the process of securing local counsel in Ohio, and requested “an extension to answer or otherwise respond to the complaint to on or before July 12, 2017.” Id.

         On June 9, 2017, the Court inquired with Mr. Cupar as to whether Plaintiff intended to file a motion for entry of default. (Doc. 6-3 at 3). Mr. Cupar responded to the Court, copying Mr. Austin, stating:

I just spoke with opposing counsel, Christopher Austin, who I copy on this email. His client, uPost, agrees to answer the complaint - and not respond with any motion challenging the complaint on Rule 12 or 13 grounds since defendant is past due on that deadline - by Wednesday, June 14 (he is finalizing retention of local counsel) to avoid default.

Doc. 6-3 at 2).

         On June 13, 2017, Defendant, through local counsel, filed a motion to dismiss for improper venue. (Doc. 5). The motion argues that venue is not proper in the Southern District of Ohio under 28 U.S.C. § 1400(b) because Defendant does not “reside” in Ohio and does not have a “regular and established place of business” in Ohio. (Id. at 1-2). Defendant's motion is supported by the Declaration of Richard E. Dural, Defendant's President and Secretary. Mr. Dural states that (1) Defendant is registered in the state of Nevada and maintains its corporate headquarters in Las Vegas, Nevada, (2) all of Defendant's books and records are located in and maintained at Defendant's corporate office in Las Vegas, Nevada, (3) Defendant has “no manufacturing, sales, services or administrative or marketing activities in Ohio and has never had any such activities in Ohio, ” (4) Defendant has never sold any products or services anywhere in the state of Ohio and has never had a customer or client in the state of Ohio, (5) Defendant has no employees, officers, agents or operations in Ohio, (6) Defendant does not direct any advertisement activities for its products or services to any resident of Ohio, (7) Defendant has never leased or rented any office or other real property in the state of Ohio, and (8) Defendant has no business operations of any kind in the state of Ohio, and certainly has no regular or established business operations anywhere in Ohio. (Doc. 5-2 at ¶¶ 2-9).

         Defendant's motion requests dismissal, but, in the alternative, requests that the case be transferred to the United States District Court for the District of Nevada “if this Court finds it is the interest of justice to do so.” (Doc. 5 at 1).

         In response, Plaintiff argues Defendant waived all arguments related to improper venue:

[Defendant] expressly waived its venue objection by agreement with [Plaintiff's] counsel to avoid default and to obtain an extension of time to answer. This is confirmed by: (a) the attached declaration of [Plaintiff's] attorney; (b) by email from [Defendant's] counsel in which he thanked [Plaintiff] for the courtesy of allowing him until June 14 “to file an answer, ” where his prior request to [Plaintiff]-to which [Plaintiff] did not agree-was for a longer extension and to allow [Defendant] to answer “or otherwise respond”; and (c) the June 9 email from [Plaintiff's] counsel to the Court-which [Defendant's] counsel had agreed to, and which he ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.