United States District Court, S.D. Ohio, Western Division
NSIXTY, LLC, Plaintiff.
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.
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).
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).
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).
was served with the Complaint on May 17, 2017; its answer was
initially due on June 7, 2017. (Doc. 4).
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,
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).
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).
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).
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