United States District Court, D. Nebraska
F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Briggs & Stratton
Corporation's (“Briggs”) objections,
Filing No. 755, to the Memorandum and Order of the
Magistrate Judge, Filing No. 754, on Briggs's
Motion to Transfer, Filing No. 715. The Magistrate
Judge denied the motion.
salient facts are set forth in the Magistrate Judge's
order and need not be repeated here. Briefly, after remand
from the Eighth Circuit Court of Appeals, Briggs moved to
transfer venue to the Eastern District of Wisconsin under
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). The
Magistrate Judge denied the motion, finding that although
Briggs's venue challenge was not considered waived under
In re Micron Tech., Inc., 875 F.3d 1091 (Fed. Cir.
2017) (finding venue challenges based on TC
Heartland are not procedurally improper under Rule 12 if
the matter was pending at the time TC Heartland was
decided), the transfer should be denied based on Briggs's
conduct and delay as well as the procedural posture of the
challenges the Magistrate Judge's (1) finding that
“Briggs wanted to wait for the outcome of the Federal
Circuit appeal prior to raising its venue objections”
as opposed to “request[ing] an indicative ruling from
the district court under Fed.R.Civ.P. 62.1[;]” (2)
finding that cases with “much shorter delays have given
rise to forfeiture[;]” (3) reliance on cases that
“declined transfer at much earlier litigation
stages” without looking at procedural posture; (4)
finding that “certain procedural questions”
arising from what issues would be heard if the case were
transferred is a factor that “necessitates continued
litigation of this matter in the current district, in the
interest of judicial economy[;]” and (5) failure to
consider the prejudice to Briggs of litigating in an improper
forum.” Filing No. 754, Memorandum and Order
at 5-8; see Filing No. 755, Objections at 3-4.
magistrate judge's authority over nondispositive pretrial
matters is governed by 28 U.S.C. § 636(b)(1)(A).
Gomez v. United States, 490 U.S. 858, 873-74 (1989);
see also Fed. R. Civ. P. 72(a). On review of a
decision of the magistrate judge on a nondispositive matter,
the district court may set aside any part of the magistrate
judge's order that it finds is clearly erroneous or
contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a); see Ferguson v. United States, 484
F.3d 1068, 1076 (8th Cir. 2007).
decision is “‘clearly erroneous' when,
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
Chakales v. Comm'r of Internal Revenue, 79 F.3d
726, 728 (8th Cir. 1996); see Ferguson v. United
States, 484 F.3d 1068, 1076 (8th Cir. 2007). A decision
is “contrary to the law” when it “fails to
apply or misapplies relevant statutes, case law or rules of
procedure.” Knutson v. Blue Cross & Blue Shield
of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008) (quoting
Transamerica Life Ins. Co. v. Lincoln Nat'l Life Ins.
Co., 592 F.Supp.2d 1087, 1093 (N.D. Iowa 2008)).
court has reviewed the parties' submissions and finds the
Magistrate Judge's order is neither clearly erroneous nor
contrary to law. The court agrees that waiver does not bar
Briggs's motion, since parties can raise challenges to
venue under TC Heartland if the case was pending at
the time of the TC Heartland decision. In re
Micron Tech., Inc., 875 F.3d at 1096. Nevertheless,
factors such as timeliness, procedural posture, and efficient
use of judicial resources weigh against a transfer. See
Micron, 875 F.3d at 1101-02 (concluding that the
district court may exercise its inherent powers to find
waiver outside of Rule 12 under the framework of Dietz v.
Bouldin, Inc. 136 S.Ct. 1885, 1891-92 (2016)); see,
e.g., In re BigCommerce, Inc., 890 F.3d 978,
982 (Fed. Cir. 2018) (finding waiver inappropriate under
Dietz when motion for improper venue was filed nine
days after TC Heartland issued, and the case had
only been pending for approximately two months at the time of
patent infringement action was filed over eight years ago. It
was tried to this court, was appealed and was remanded. This
court is familiar with the proceedings, issues, and the
parties' positions. A transfer of venue would result in
unnecessary duplication of effort. Under the circumstances,
the court agrees with the Magistrate Judge that a transfer of
venue is not warranted. Considerations of the parties'
convenience are outweighed by the age and extensive previous
litigation of the case and by judicial economy. Accordingly,
IT IS ORDERED that:
1. Defendant Briggs's objections (Filing No.
755) to the Magistrate Judge's ...