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Exmark Manufacturing Co. Inc. v. Briggs & Stratton Corp.

United States District Court, D. Nebraska

June 27, 2018

EXMARK MANUFACTURING COMPANY INC., Plaintiff,
v.
BRIGGS & STRATTON CORPORATION, Defendant.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE

         This case in before the court on Briggs' Motion to Transfer, (Filing No. 715).

         BACKGROUND

         The extensive procedural history of this case spans more than eight years and nearly 800 entries on the court's electronic docket. It is briefly summarized as follows:

         Plaintiff Exmark Manufacturing Company Inc. (“Exmark”) and Briggs & Stratton Corporation (“Briggs”) are in the commercial lawn mower industry. And in 2010, Exmark filed suit against its competitor Briggs, [1] alleging Briggs infringed on claim 1 of U.S. Patent No. 5, 987, 863 (“the ‘863 patent”). (Filing No. 1). The ‘863 patent is directed at improved lawn mower “baffles, ” which control the flow of air and of grass clippings during a lawn mower's operation.

         The United States Patent and Trademark Office (“PTO”) twice reexamined the patentability of claim 1 during the pendency of this lawsuit, necessitating a two-year stay of the proceedings before this court. (Filing No. 197).

         After lifting the stay, extensive discovery and dispositive motion practice ensued, culminating in United States District Judge Joseph F. Bataillon's ruling on the eleven (11) interrelated motions for summary judgment. (Filing No. 476). The surviving issues were tried to a jury in late 2015, ending in a $24 million verdict for Plaintiff Exmark. This court later doubled the damages award, determining that Briggs' infringement was willful and that Exmark was entitled to enhanced damages. (Filing No. 689). Judge Bataillon then presided over a bench trial regarding Briggs' motion for judgment of laches, and found that Briggs was not entitled to equitable relief. The court also denied Briggs' post-trial motion for a new trial. Briggs appealed. (Filing No. 694).

         In January 2018, the Court of Appeals for the Federal Circuit vacated the jury's damage award and this court's award of enhanced damages. (Filing No. 706). On remand, the circuit instructed this court to evaluate the willfulness and damages issues and to conduct a new trial on those issues, if necessary.[2] (Id.).

         Three months after remand, Briggs filed the instant motion to transfer this case to the United States District Court for the Eastern District of Wisconsin. (Filing No. 715). For the following reasons, the motion will be denied.

         ANALYSIS

         Briggs' motion to transfer is based on a change in law. During the pendency of Briggs' appeal to the Federal Circuit, the United States Supreme Court issued its decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct. 1514 (2017), which clarified proper patent infringement venue under 28 U.S.C. § 1400(b). Under that precedent, Briggs argues, venue is improper in this district and this case must be transferred to the United States District Court for the Eastern District of Wisconsin. (Filing No. 716). Exmark, in turn, argues that venue remains proper in this district. (Filing No. 735). It further argues that even venue is improper under TC Heartland, Briggs has waived its venue objection at this stage in the litigation. (Id.).

         For the following reasons, the court agrees that Briggs has waived its right to challenge venue. Therefore, the court will not reach the parties' arguments as to whether venue is proper in the District of Nebraska under 28 U.S.C. § 1400(b).

         I. Rule 12 Waiver

         At the time TC Heartland was issued, the Supreme Court did not indicate how it would affect pending cases - like the instant case. And as a result, district courts were at a months-long loggerheads over whether TC Heartland effected a change of law such that the ordinary Fed.R.Civ.P. 12(h) waiver rules were inapplicable. Put differently, district courts were unclear whether the parties to then-pending patent cases ...


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