Judge Andrews denies request to renew motion to dismiss for lack of venue.

Judge Richard G. Andrews recently denied a defendant’s request to renew its venue-based motion to dismiss.  Invidior Inc. v. Mylan Tech., No. 15-1016 (RGA) (D. Del. July 28, 2017).  Quoting Davis v. Smith, 253 F.2d 286, 288 (3d Cir. 1958), the Court explained, “[a] litigant waives its right to contest venue when ‘the litigant performs some act which indicates to the court that [it] elects not to raise [its] privilege of venue.'”  Here, the defendant had earlier filed a motion to dismiss for lack of venue, but then asked the Court to reserve ruling on the motion while it appealed a personal jurisdiction ruling in another case (an appeal which it subsequently lost).  The Court noted that instead of renewing its venue-based motion to dismiss at that point, the defendant engaged in a “flurry of litigation activity . . . including participating in claim construction and discovery, and entering a consent decree for one of the patents at issue in the case.”   Judge Andrews found that the defendant’s renewal of the motion to dismiss for lack of venue, which came over a year after the unsuccessful appeal of the personal jurisdiction issue in the other case, came too late.  “Having actively participated in litigation here for so long, Defendant has communicated its consent to venue here in the District of Delaware.”

Invidior 15-1016

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