Wednesday, May 09, 2018

CAFC disputes Wright, Federal Practice & Procedure in In re: HTC CORPORATION


Given the availability
of adequate relief on appeal, mandamus review of improper-venue
decisions is generally inappropriate. See
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 379–84
(1953) (holding that mandamus review of an impropervenue
decision was inappropriate and noting it was not
clear that an adequate remedy could not be afforded);


As to an argument about the inefficiency of having to go
to final judgment before being heard as to improper venue:

Although Petitioner argues that it should “not be
forced to litigate this case in an improper venue through a
final judgment before it can contest venue via appeal,”
Pet’r’s Br. 6, the Supreme Court rejected this same argument
in Bankers Life, explaining that “the extraordinary
writs cannot be used as substitutes for appeals, even
though hardship may result from delay and perhaps
unnecessary trial.” Bankers Life, 346 U.S. at 383 (citations
omitted); see also Comfort Equip., 212 F.2d at 375
(“If the correctness of [the judge’s] ruling on the [improper-venue]
motions to dismiss must await an appeal from
the final disposition of the case on its merits in the district
court, there is no unusual inconvenience or hardship.”).
Decisions of this court and the Third Circuit
reflect that reasoning. See In re BP Lubricants USA Inc.,
637 F.3d 1307, 1313 (Fed. Cir. 2011) (“To issue a writ [of
mandamus] solely for th[e] reasons [that a defendant will
be forced to undergo the cost of discovery and trial] would
undermine the rare nature of its form of relief and make a
large class of interlocutory orders routinely reviewable.”
(citing Bankers Life, 346 U.S. at 383)); Gulf Research, 193
F.2d at 304–05 (“The mere fact that the petitioners will be
put to the inconvenience and expense of what may prove
to be a wholly abortive trial is an argument which might
be addressed to Congress in support of legislation authorizing
interlocutory appeals but does not constitute ground
for invoking mandamus power.”)

Thus, the CAFC stated

, there may be circumstances in
which it is inadequate. We need not articulate such
circumstances here, as Petitioner’s only argument is that
it should be able to avoid the inconvenience of litigation
by having this issue decided at the outset of its case. This
is insufficient, and there is no other indication that Petitioner
cannot be afforded adequate relief on appeal.

A separate part of the case involved aliens and venue statutes:

the “long-established rule that suits
against aliens are wholly outside the operation of all the
federal venue laws, general and special.” Id. at 714. The
Court thus upheld the alien-venue rule and held that the
Canadian corporation defendant in that case, Brunette
Machine Works, Ltd., could not rely on § 1400(b) as a
“shield” against suit in a particular district. Id.

Note footnote 9

For all of the reasons we have recited, including
the TC Heartland decision, we do not think that the
statute is properly read to adopt the view on this point
expressed by the American Law Institute Federal Judicial
Code Revision Project 146–47, 200–01 (2004), from which
the 2011 legislation derived through a process that
changed the ALI’s proposal (which included repeal of
§ 1400) and produced a quite different congressional
committee explanation. We also do not adopt the brief
statement on the issue in Wright, Federal Practice &
Procedure § 3810 (“Because nothing in the statute limits
the application of Section 1391(c)(2) to entities formed in
the United States, the provision governs venue in cases
involving entities formed in foreign countries.” (citing
Poliseno v. Credit Suisse Secs. (USA), LLC, 2013 WL
499509 (D. Mont. Feb. 8, 2013), report & recommendation
adopted, 2013 WL 1767951 (D. Mont. Apr. 24, 2013))).


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