Seven Months’ Delay Too Much for Venue Transfer After TC Heartland…. Or Is It?

Order Granting Defendant’s Motion to Transfer for Improper Venue or, Alternatively, to Dismiss, Blue Rhino Global Sourcing, Inc. v. Best Choice Products a/k/a Sky Billiards, Inc., M.D.N.C. (June 20, 2018) (Judge Loretta C. Biggs) and Adrian Rivera v. Remington Designs, LLC, C.D. Cal. (June 19, 2018) (Judge John A. Kronstadt)

Courts continue to work through the backlog of venue motions created by the combo of TC Heartland and In re Micron Tech. rulings. In a pair of almost concurrently issued opinions two courts reached differing conclusions as to whether a seven month delay was sufficient to deem a venue transfer motion waived.

In Blue Rhino Global Sourcing, Inc. v. Best Choice Productions a/k/a Sky Billiards, Inc., the court ruled that seven months’ delay was not enough to waive a venue transfer motion and ultimately granted such a motion. Yet, just one day before, the court in Adrian Rivera v. Remington Designs, LLC found that seven months’ delay was too long and held that the defendant had waived its request to transfer venue. So what’s the difference?

In the case of these two rulings, the courts’ analysis appeared to hinge on whether the parties had been actively litigating during their respective seven month periods. In Blue Rhino, the court found that the plaintiff did not cite any undue prejudice, and further noted that no litigation activity took place from the period between when TC Heartland was decided and the defendant’s motion was filed. To the contrary, the court in Rivera found that the parties actively litigated the case, including motions for summary judgment and supplemental authority, and that the defendant’s decision to file its motion after losing summary judgment reflected the “type of ‘tactical wait-and-see bypassing of an opportunity to declare a desire for a different forum,’” that was deemed objectionable in In re Micron Tech. Additionally, the defendants filed their venue transfer motion after claim construction had already been completed and just two weeks before the close of fact discovery. Based on the status of litigation thus far, the court ruled that the defendants had waived their request to transfer.

Accordingly, if a litigant is considering whether to move to transfer venue, it should do so expeditiously or risk the court ruling that it waived any such request.