On May 15, 2018, the Federal Circuit in In re BigCommerce issued an order in response to writs of mandamus seeking dismissal and transfer.  Nos. 2018-120, 2018-122, 2018 WL 2207265 (Fed. Cir. May 15, 2018).  The panel ruled that for purposes of the patent venue statute (28 U.S.C. § 1400(b)), if a domestic corporation is incorporated in a state having several judicial districts, then it “resides” in only one district.  Id. at *6.  That district is either (1) the district in the state where the corporation maintains its principal place of business or (2) if that does not exist, then the district containing the corporation’s registered office.  Id.  In re BigCommerce follows the Supreme Court’s seminal 2017 TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) decision altering the course of where domestic corporations may be sued for patent infringement.

Faced with two patent infringement lawsuits in the Eastern District of Texas (Diem and Express Mobile), BigCommerce argued in the respective cases that under the Supreme Court’s rulings in TC Heartland and Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561 (1942), BigCommerce resided in only the Western District of Texas, despite being registered as a corporation in Texas, which has four federal judicial districts (see 28 U.S.C. § 124).  In re BigCommerce, 2018 WL 2207265, at *1.  BigCommerce moved to dismiss the Diem litigation and moved to transfer Express Mobile, both for improper venue. Id.; see also Diem LLC v. BigCommerce, Inc., No. 17-cv-00186-JRG-JDL, 2017 WL 3187473 (E.D. Tex. July 26, 2017); Express Mobile, Inc. v. BigCommerce, Inc., No. 17-cv-00160-JRG-RSP, slip op. at 1 (E.D. Tex. Nov. 8, 2017).

Judge Rodney Gilstrap disagreed with BigCommerce, holding that BigCommerce “resided” in every district in Texas, and denied BigCommerce’s motion to dismiss in DiemSee Diem, 2017 WL 3187473, at *2-3.  Magistrate Judge Payne followed Judge Gilstrap’s ruling and denied BigCommerce’s motion to transfer in Express MobileSee Express Mobile, slip op. at 1.

BigCommerce petitioned for writs of mandamus. The Federal Circuit granted BigCommerce’s petitions, vacated the lower court’s orders, and remanded for further proceedings.

In its remand decision, the Federal Circuit held, “a domestic corporation incorporated in a state having multiple judicial districts ‘resides’ for purposes of the patent-specific venue statute, 28 U.S.C. § 1400(b), only in the single judicial district within that state where it maintains a principal place of business, or failing that, the judicial district in which its registered office is located.”  In re BigCommerce, 2018 WL 2207265, at *1.  In analyzing the issue, the Federal Circuit focused on the statutory language, which the Court said specifies a single judicial district where a defendant resides: “Any civil action for patent infringement may be brought in the judicial district where the defendant resides[.]” Id. at *3-6 (quoting 28 U.S.C. § 1400(b)).  The court stated that its reading is consistent with the history of the provision and general principles of statutory construction.  Id. at *3-4.  Finally, the court set out the test to identify the one district in which a domestic corporation resides in a multi-district state, described above, citing Supreme Court precedent.  Id. at *5 (citing Galveston, H. & S.A. Ry. Co. v. Gonzales, 151 U.S. 496, 504 (1894); Shaw v. Quincy Mining Co., 145 U.S. 444, 449 (1892)).

Since BigCommerce had both its principal place of business and its registered office in the Western District—not the Eastern District—the Federal Circuit held that BigCommerce only resided in the Western District of Texas under § 1400(b).  Id. at *6.

This decision, along with other post-TC Heartland decisions, further limits a plaintiff’s ability to “forum shop” when suing domestic corporations, forcing plaintiffs to sue patent litigation defendants where they are truly “at home.”