Indivior Inc. et al v. Mylan Technologies Inc. et al

Filing 171

MEMORANDUM ORDER Denying request to renew motion to dismiss (D.I. 154 ). Signed by Judge Richard G. Andrews on 7/28/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

lNDIVIOR INC.,

Plaintiff,
No. 15-cv-1016 (RGA)

v.
MYLAN TECH.,

Defendant.

MEMORANDUM ORDER

Defendant's request (D.I. 154) to renew its motion to dismiss for lack of venue
is DENIED. A litigant waives its right to contest venue when "the litigant performs
some act which indicates to the court that [it] elects not to raise [its] privilege of
venue." Davis v. Smith, 253 F.2d 286, 288 (3d Cir. 1958); see also Neirbo Co. v.

Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939) (Venue objections "may be
lost by failure to assert it seasonably, by formal submission in a cause, or by
submission through conduct."); Koninklijke Philips N. V. v. ASUSTeK Computer

Inc., 2017 WL 3055517, at *2 (D. Del. Jul. 19, 2017).
Defendant timely objected to venue by filing a motion to dismiss for lack of
venue as part of its first defensive response. (D.I. 9). Before I could rule on that
motion, however, Defendant asked me to "refrain from taking further action on
Defendants' pending motion to dismiss .... " (D.I. 51). A panel of the Federal Circuit

had ruled against Defendant in Acorda Therapeutics Inc. v. Mylan Pharma. Inc.,
817 F.3d 755 (Fed. Cir. 2016). That case involved whether there was personal
jurisdiction over Defendant in Delaware. The case did not touch on venue. I granted
Defendant's request with permission to renew the motion. (D.I. 55). Defendant's
request for rehearing was denied on June 20, 2016 (No. 15-1456 D.I. 128), and on
January 9, 2017, the Supreme Court denied its writ of certiorari, Mylan Pharma. v.

Acorda Therapeutics, 137 S. Ct. 625 (2017).
After its defeat in the Federal Circuit, Defendant could have renewed its
motion on venue grounds. It did not. Instead, the docket shows a flurry of litigation
activity by Defendant including participating in claim construction and discovery,
and entering a consent decree for one of the patents at issue in the case.
On June 28, 2017, more than a year after the Federal Circuit denied its
petition for rehearing and six months after the Supreme Court denied certiorari,
Defendant renewed its objection to venue. Defendant is too late. Having actively
participated in litigation here for so long, Defendant has communicated its consent
to venue here in the District of Delaware. Defendant's request to renew its motion
to dismiss for lack of venue is DENIED.
IT IS SO ORDERED this

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li_ day of July 2017.

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