Since the Supreme Court’s decision in TC Heartland, many defendants in earlier-filed cases have tested whether they can raise an improper venue defense, or waived the issue by failing to raise it in their answers or through later litigation conduct. A majority of district courts to consider the issue have found that TC Heartland did not change the law so as to qualify as an exception to the waiver doctrine, but some jurisdictions have taken the opposite view. (A chart of exemplary cases is included below.) Judge Rayes’ recent decision in OptoLum v. Cree leads the District of Arizona into the minority group and suggests that the question will continue to be addressed district by district.
Defendant Cree was in a position that may sound familiar to many pre-TC Heartland defendants: At the start of the case, Cree had moved to dismiss under Rule 12(b)(6) and for transfer under 28 U.S.C. § 1404. After the court dismissed certain claims and denied transfer, Cree filed an answer admitting that venue is proper. In light of TC Heartland, however, Cree moved to amend its answer to deny proper venue and to dismiss on that basis. READ MORE