Berall v. Verathon Inc. et al
Filing
390
MEMORANDUM & ORDER granting 359 Motion to Dismiss. Teleflex's motion to dismiss [dkt. no. 359] is GRANTED. The instant case shall be transferred to the Eastern District of North Carolina pursuant to 28 U.S.C. § 1406(a). The Clerk of the Court shall close the open motion [dkt. no. 359]. SO ORDERED. (Signed by Judge Loretta A. Preska on 7/11/22) (yv) Transmission to Office of the Clerk of Court for processing. (Main Document 390 replaced on 7/11/2022) (yv).
Case 1:10-cv-05777-LAP Document 390 Filed 07/11/22 Page 1 of 17
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JONATHAN BERALL, M.D., M.P.H.,
Plaintiff,
No. 10-CV-5777 (LAP)
-against-
MEMORANDUM & ORDER
TELEFLEX MEDICAL INCORPORATED,
Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Defendant Teleflex Medical
Incorporated’s (“Teleflex”) motion to dismiss1 Plaintiff Dr.
Jonathan Berall’s (“Dr. Berall”) Second Amended Complaint2 for
improper venue, pursuant to Federal Rule of Civil Procedure
12(b)(3), or, in the alternative, to transfer venue, pursuant to
28 U.S.C. § 1406(a).3
Teleflex responded.5
Plaintiff opposed the motion,4 and
For the reasons set forth below, Teleflex’s
motion to dismiss is granted; the instant case shall be
(See Teleflex’s Mot. to Dismiss or Alternatively to Transfer
Venue in Response to Pl’s. Second Am. Compl. (“MTD”), dated Dec.
2, 2021) [dkt. no. 359].) All citations to docket entries
herein refer to 10-cv-5777.
2 (See Second Am. Compl. (“SAC”), dated Nov. 4, 2021 [dkt. no.
351].)
3 28 U.S.C. § 1406(a) provides that if a case is filed in an
improper venue, the Court “shall dismiss, or if it be in the
interest of justice, transfer such case to any district . . . in
which it could have been brought.” 28 U.S.C. § 1406(a).
4 (See Pl. Dr. Jonathan Berall’s Resp. to Teleflex’s Mot. to
Dismiss (“Opp.”), dated Dec. 30, 2021 [dkt. no. 374].)
5 (See Teleflex’s Reply in Supp. of Its Mot. to Dismiss or
Alternatively to Transfer Venue in Resp. to Pl’s. Second Am.
Compl. (“Reply”), dated Jan. 13, 2022 [dkt. no. 385].)
1
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transferred to the Eastern District of North Carolina pursuant
to 28 U.S.C. § 1406(a).
I.
Background
Unless otherwise noted, the facts are drawn from the Second
Amended Complaint (“SAC”) and are construed in the light most
favorable to Plaintiff.
See, e.g., Phillips v. Audio Active
Ltd., 494 F.3d 378, 384 (2d Cir. 2007).
The Court also
considers facts outside of the pleadings, including affidavits.
See, e.g., Shepherd v. Annucci, 921 F.3d 89, 95 (2d Cir. 2019)
(noting that for a motion to dismiss under Rule 12(b)(3),
parties may submit affidavits to demonstrate lack of venue).
a. Procedural History
Plaintiff commenced the instant action on July 30, 2010,
alleging infringement of United States Patent No. 5,827,178
(“the ‘178 Patent”) by, among other defendants, LMA North
America, Inc. (“LMA”) for its activities concerning video
laryngoscopes.6
(See dkt. no. 1; SAC ¶ 19.)
On May 11, 2011,
the Court stayed proceedings pending the United States Patent
and Trademark Office’s (the “PTO”) reexamination of the ‘178
Patent.
(See dkt. no. 78; SAC ¶ 23.)
Plaintiff alleged that “[o]n information and belief, LMA is the
exclusive United States distributor for Aircraft’s video
laryngoscopes, including, for example, the McGrath Series 5
video laryngoscope.” (Dkt. no. 1 ¶ 16.)
6
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During the stay, on December 31, 2013, LMA merged with and
into Teleflex, with the latter surviving.7
LMA filed a
supplemental Rule 7.1 statement informing the Court and the
parties of its acquisition by Teleflex on April 21, 2020.
dkt. no. 154.)
(See
Four days prior, LMA notified the Court that it
may advance a defense of improper venue considering the Supreme
Court’s decision in “TC Heartland, LLC v. Kraft Foods Group
Brands, 137 S. Ct. 1514 (2017) and may move to transfer at the
earliest opportunity.”
(Dkt. no. 153.)
On November 12, 2020, Plaintiff filed his First Amended
Complaint (“FAC”) (dkt. no. 193); however, the “FAC did not
amend Dr. Berall’s allegations as to LMA” because “the stay
remained in place as to LMA.”8
(See id.; SAC ¶¶ 27, 28.)
LMA
answered the FAC on December 15, 2020, and did not contest
venue, stating: “solely to conserve the resources of the parties
and the Court, LMA does not contest venue in this judicial
district solely for the purposes of this action.”
(Dkt. no. 213
¶ 11.)
(See Decl. of Jonathan R. Wise in Supp. of Def. Teleflex Med.
Inc.’s Mot. to Dismiss or Alternatively to Transfer Venue in
Resp. to Pl’s. Second Am. Compl., dated Dec. 2, 2021 [dkt. no.
360] Ex. C.)
8 In 2020, Dr. Berall notified Teleflex that he “intended to
assert that Teleflex’s activities related to . . . Airtraq video
laryngoscopes, infringed the ‘178 Patent” (SAC ¶ 126); however,
Plaintiff did not assert these claims until filing the SAC.
(Dkt. no. 1; FAC; SAC ¶ 126.)
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The Court lifted the stay as to LMA on December 1, 2020.
(See dkt. no. 207; SAC ¶ 30.)
On January 19, 2021, the Court
granted Plaintiff’s motion to substitute Teleflex for LMA.
dkt. no. 234; SAC ¶ 32.)
(See
On February 12, 2021, Teleflex (as
LMA’s successor-in-interest) filed a motion for summary judgment
“of non-infringement based on patent exhaustion of the accused
products that LMA distributed for Aircraft . . . .”
257 at 14; see also dkt. no. 255.)
motion on September 13, 2021.
(Dkt. no.
The Court denied Teleflex’s
(See dkt. no. 334.)
The Court granted Plaintiff’s request to file a Second
Amended Complaint on November 1, 2021, (see dkt. no. 350), which
Plaintiff filed on November 4, 2021.
(See SAC.)
In the SAC,
Plaintiff included—for the first time—allegations against
Teleflex as an entity separate from its interest in LMA.
SAC.)
(See
Specifically, Plaintiff alleges that Teleflex infringed
the ‘178 Patent through Teleflex’s distribution of Airtraq
laryngoscopes manufactured by Prodol Meditec S.A.9
(See id.
¶¶ 54-63, 81-82.)
Teleflex moved to dismiss the SAC on December 2, 2021.
(See MTD.)
The parties primarily dispute the following issues:
(1) whether venue over Teleflex (both as LMA’s successor-in-
Teleflex became “the exclusive United States distributor for
Airtraq video laryngoscopes [] in 2015,” two years after LMA
merged into Teleflex. (SAC ¶ 16.)
9
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interest and as a separate entity) is proper in the Southern
District of New York (this “District”); (2) whether Teleflex
waived its venue objection; and (3) whether Teleflex forfeited
its venue challenge by participating in this litigation.
The
Court addresses each issue in turn.
II.
Legal Standards
In a patent infringement action, venue is governed by the
patent venue statute, 28 U.S.C. § 1400(b).
See TC Heartland LLC
v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1519-21 (2017).
“Whether venue is proper under § 1400(b) is an issue unique to
patent law and is governed by Federal Circuit law.”10
In re ZTE
(USA) Inc., 890 F.3d 1008, 1012 (Fed. Cir. 2018) (citation
omitted).
“[U]pon motion by the Defendant challenging venue in
a patent case, the Plaintiff bears the burden of establishing
proper venue.”
Id. at 1013.
Pursuant to 28 U.S.C. § 1400(b), “[a]ny civil action for
patent infringement may be brought in the judicial district
[i] where the defendant resides, or [ii] where the defendant has
committed acts of infringement and has a regular and established
place of business.”
28 U.S.C. § 1400(b).
In applying the
Federal Circuit law also governs (1) “the burden of persuasion
on venue under § 1400(b)” and (2) “issues of waiver or
forfeiture of patent-venue rights under § 1400(b) and
§ 1406(a).” In re Oath Holdings Inc., 908 F.3d 1301, 1305 (Fed.
Cir. 2018) (citation omitted).
10
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patent venue statute, the Court is mindful that § 1400(b) “is
intended to be restrictive of venue in patent cases compared
with the broad general venue provision.”
ZTE, 890 F.3d at 1014
(citations omitted).
III. Discussion
a. Waiver
The threshold issue is whether Teleflex waived its right to
contest venue.
Plaintiff argues that Teleflex waived this
challenge when LMA answered the FAC (see dkt. no. 213) because
Teleflex actually filed that answer after LMA merged into
Teleflex in 2013.
(See Opp. at 6-8.)
Teleflex does not dispute
that Plaintiff has established proper venue over LMA.
no. 213 ¶ 11.)
(See dkt.
Instead, Teleflex argues that the instant motion
is its first opportunity as a defendant (separate from standing
in LMA’s shoes with respect to claims pleaded against LMA) to
challenge venue.
(See MTD at 16-20.)
For the following
reasons, the Court concludes that Teleflex has not waived its
venue defense.
First, Teleflex did not answer the FAC.
Rule 25(c) is a
procedural mechanism governing the transfer of interests from an
original party to its successor.
As Rule 25(c) states, “[i]f
any interest is transferred, the action may be continued by or
against the original party unless the court, on motion, orders
the transferee to be substituted in the action or joined with
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the original party.”
Fed. R. Civ. P. 25(c) (emphasis added).
LMA filed its answer to the FAC prior to the Court’s (1) lifting
the stay as to LMA on December 1, 2020, (see dkt. no. 207), and
(2) granting Plaintiff’s motion to substitute Teleflex for LMA
(see dkt. no. 234).
Plaintiff argues that “although the caption
in this Action may have continued to name the non-existent ‘LMA
North America, Inc.,’ Teleflex was the actual defendant in all
but name as of December 31, 2013.”
(Opp. at 8.)
However, the
case proceeded against LMA in accordance with Rule 25(c) until
the Court granted Plaintiff’s motion to substitute Teleflex for
LMA on January 19, 2021 (see dkt. no. 234).
See Homeward
Residential, Inc. v. Sand Canyon Corp., 499 F. Supp. 3d 18, 22
n.3 (S.D.N.Y. 2020) (“[B]ecause an ‘action may be continued by
. . . the original party’ even ‘[i]f an interest is
transferred,’ Fed. R. Civ. P. 25(c), the possibility that
[plaintiff] transferred its interests does not present a
jurisdictional problem.”).
Therefore, at that stage, it was
proper for the action to continue against LMA, not Teleflex.
Second, Teleflex could not challenge venue when the Court
ordered substitution under Rule 25(c) because Plaintiff did not
name Teleflex as a standalone defendant until filing the SAC.
Substantive issues, including venue, are not disturbed when a
court orders substitution or joinder of a successor in interest
under Rule 25(c).
See Minnesota Min. & Mfg. Co. v. Eco Chem,
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Inc., 757 F.2d 1256, 1263 (Fed. Cir. 1985) (“The transferee is
not joined because its substantive rights are in question;
rather, the transferee is brought into court solely because it
has come to own the property in issue.
The merits of the case,
and the disposition of the property, are still determined vis-àvis the originally named parties.”).
As stated above, Teleflex
does not dispute that LMA did not contest venue when it answered
the FAC.
Because the FAC did not contain allegations exclusive
to Teleflex as an entity separate from LMA, upon substitution,
Teleflex only stood in the shoes of LMA for the claims that had
actually been pled.
When Plaintiff filed the SAC alleging that Teleflex
infringed the ‘178 Patent through Teleflex’s distribution of
Airtraq laryngoscopes, Plaintiff raised allegations against
Teleflex as a defendant separate from LMA’s successor-ininterest.
This is further confirmed by the fact that Teleflex
did not become the exclusive distributor for Airtraq video
laryngoscopes until 2015, two years after it acquired LMA.
SAC ¶ 16.)
(See
It is well established that a plaintiff must
establish proper venue for each defendant.
See, e.g., Andra
Grp, LP v. Victoria’s Secret Stores, LLC, 6 F.4th 1283, 1287
(Fed. Cir. 2021) (noting that “to establish venue in this case,
[plaintiff] must show that each Defendant committed acts of
infringement and maintains a regular and established place of
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business in the” disputed venue).
Because the SAC was the first
time that Teleflex was named as a defendant separate from LMA’s
successor-in-interest, Teleflex’s motion to dismiss under Fed.
R. Civ. P. 12(b)(3) for improper venue is in accordance with the
time limit prescribed by Fed. R. Civ. P. 12(h)(1).
Accordingly,
the Court finds that Teleflex did not waive its defense of
improper venue.
b. Whether Teleflex Forfeited Its Venue Objection
Plaintiff contends that even if Teleflex had not waived its
venue objections via LMA filing an answer to the FAC, Teleflex
nonetheless “forfeited any objection to venue by actively
engaging in substantive litigation and invoking the jurisdiction
of this Court.”
(Opp. at 16.)
Teleflex counters stating that,
as with Plaintiff’s arguments regarding waiver, Plaintiff
disregards the fact that the SAC raises new allegations against
Teleflex as a defendant separate and apart from LMA’s successorin-interest.
(Reply at 8.)
The Court agrees with Teleflex.
The Court does not view Teleflex’s participation in this
litigation as LMA’s successor-in-interest as a tactical waitand-see bypassing of its opportunity to declare its desire for a
different forum.
Rather until Plaintiff filed the SAC, the
scope of Teleflex’s participation in this litigation was only as
LMA’s success-in-interest for the claims plead against LMA.
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The Court is persuaded that Teleflex did not give Plaintiff
“a reasonable expectation that it will defend the suit [as to
the Airtraq laryngoscopes] on the merits or must cause the court
to go to some effort that would be wasted if [venue] is later
found lacking.”
(Opp. at 17 (quoting Corporacion Mexicana De
Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-Exploracion
Y Produccion, 832 F.3d 92, 102 (2d Cir. 2016).)
First, prior to
the SAC, Teleflex (as LMA’s successor-in-interest) moved for a
protective order under Fed. R. Civ. P. 26(c) precluding
Plaintiff from obtaining discovery from Teleflex relating to
Teleflex’s distribution of Airtraq laryngoscopes “because such
discovery is unrelated to any of Berall’s claims pleaded against
LMA (or Teleflex) in this action.”11
(Dkt. no. 278; Reply at 8.)
Second, Teleflex did not consent to Plaintiff’s filing an
amended pleading because Plaintiff knew that Teleflex
distributed Airtraq laryngoscopes since “at least mid-2020,”
which predated the FAC.
(Dkt. no. 386, Ex. F.)
Taking these
facts together, the Court finds that Teleflex did not forfeit
its defense of improper venue.
c. Proper Venue
The parties do not dispute that: (1) under § 1400(b), “a
domestic corporation ‘resides’ only in its State of
Teleflex withdrew this motion after Plaintiff filed the SAC.
(See dkt. no. 362.)
11
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incorporation,” TC Heartland, 137 S. Ct. at 1517;12 and
(2) Teleflex is incorporated in California (see SAC ¶ 4).
Accordingly, venue in this district is not proper under the
first prong of § 1400(b).
The primary issue is whether
Plaintiff has met his burden of demonstrating that Teleflex has
a “regular and established place of business” in this district.
The Court concludes that Plaintiff has not.
To show that a defendant “has a regular and established
place of business” in a particular district, 28 U.S.C.
§ 1400(b), a plaintiff must satisfy three general requirements:
“(1) there must be a physical place in the district; (2) it must
be a regular and established place of business; and (3) it must
be the place of the defendant.
If any statutory requirement is
not satisfied, venue is improper under § 1400(b).”
In re Cray
Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017); see also Celgene
Corp. v. Mylan Pharms. Inc., 17 F.4th 1111, 1122 (Fed. Cir.
2021).
To satisfy the first requirement, there must be “a
physical, geographical location in the district from which the
business of the defendant [was] carried out” when Plaintiff
commenced this action.
Cray, 871 F.3d at 1362.
For the second
requirement, the place of business must “operate[] in a
See also In re Micron Tech., Inc., 875 F.3d 1091, 1099 (Fed.
Cir. 2017) (noting that “[t]he Supreme Court changed the
controlling law” at the circuit level upon deciding TC
Heartland).
12
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steady[,] uniform[,] orderly[, and] methodical manner,” and it
must be “settle[d] certainly, or fix[ed] permanently.”
1362-63 (citations omitted).
Id. at
Finally, to meet the third
requirement that the place of business “be the place of the
defendant,” the defendant “must establish or ratify the place of
business.”
Id. at 1363.
The place of business cannot be
“solely a place of the defendant’s employee.”13
Id.
Here, Plaintiff fails to meet his burden of satisfying each
Cray requirement.
In fact, Plaintiff does not contest that
Teleflex does not have a “regular and established place of
business” in this district.
(See MTD at 9; Reply at 9-10.)
Nor
does the SAC allege facts to rebut Teleflex’s assertions that it
As to the third Cray requirement, the Federal Circuit has
identified the following non-exhaustive factors: “(1) whether
the defendant owns, leases, or otherwise exercises other
attributes of possession or control over the place; (2) whether
the defendant conditioned employment on an employee’s continued
residence in the district or the storing of materials at a place
in the district so that they can be distributed or sold from
that place; (3) a defendant’s representations about that place,
including advertisements; and (4) the nature and activity of the
alleged place of business of the defendant in the district in
comparison with that of other places of business of the
defendant in other venues.” Celgene Corp. v. Mylan Pharms., 17
F.4th 1111, 1122 (Fed. Cir. 2021) (cleaned up).
13
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does not conduct business in this district.14
Accordingly,
Plaintiff has failed to establish that venue is proper in this
district under the second prong of § 1400(b).
d. Venue-Related Discovery
Plaintiff seeks jurisdictional discovery “to challenge
Teleflex’s claims that venue is not proper [in this District],
and, if it is not, to determine in which other district[s] . . .
[the case] could have been brought.”
(Opp. at 20 (cleaned up).)
Although “[t]he standard for awarding jurisdictional discovery
is low[] [as] plaintiffs need only plead legally sufficient
allegations of jurisdiction,”15 Universal Trading & Inv. Co. v.
Credit Suisse (Guernsey) Ltd., 560 F. App’x 52, 55-56 (2d Cir.
2014) (internal quotation marks and citation omitted), a court
may deny jurisdictional discovery where “plaintiffs do not
Specifically, in Kate Skibo’s declaration, Teleflex asserted
facts including that: (1) “Teleflex did not own, lease, or rent
property in SDNY or hold out any SDNY address as a place of
business” (MTD at 10); (2) Teleflex “employees living in SDNY
have not held their home addresses out as Teleflex places of
business, and Teleflex has never held these employees’ homes out
as a Teleflex office or location nor used their addresses as
Teleflex’s own” (id. at 12); and (3) “Teleflex did not own,
lease, or otherwise possess or control any employee’s home in
SDNY” (id. at 14).
15 The Federal Circuit has held that a district court’s denial of
discovery is “an issue not unique to patent law . . . applying
the law of the regional circuit.” Autogenomics, Inc. v. Oxford
Gene Tech. Ltd., 566 F.3d 1012, 1021 (Fed. Cir. 2009). Thus,
the Court applies Second Circuit law regarding jurisdictional
discovery to Plaintiff’s request for venue discovery. See
NetSoc, LLC v. Chegg Inc., 2019 WL 4857340, at *4 (S.D.N.Y. Oct.
2, 2019).
14
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establish a prima facie case that the district court has
jurisdiction over the defendant.”
Chirag v. MT Marida
Marguerite Schiffahrts, 604 F. App’x 16, 18-19 (2d Cir. 2015)
(citation omitted).
“A prima facie case requires non-conclusory
fact-specific allegations or evidence showing activity that
constitutes the basis of jurisdiction has taken place.”
19 (citation omitted).
Id. at
“Courts have denied venue discovery in
patent infringement actions despite allegations that a
defendant’s employee lived and conducted business in the
district, absent further ‘fact-specific allegations or evidence
that could support a finding that venue is proper.’”
UI Techs.,
Inc. v. Ricoma Int’l Corp., No.22-CV-00220 (JMA)(ST), 2022 WL
1693633, at *4 (E.D.N.Y. May 26, 2022) (quoting NetSoc, LLC v.
Chegg Inc., 2019 WL 4857340, at *4-5 (S.D.N.Y. Oct. 2, 2019).
Here, as discussed above, Plaintiff did not allege facts
supporting any Cray prong to find that venue is proper over
Teleflex.
Plaintiff’s statements that he “had no expectation
that Teleflex sought to challenge venue and had not conducted
discovery” do not justify the absence of supporting evidence.
(Opp. at 20.)
Plaintiff also fails to allege that
jurisdictional discovery may uncover additional evidence that
could support a finding that venue is proper over Teleflex in
this district.
Rather, Plaintiff only alleges that “Teleflex
may have a regular and established place of business in New
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Jersey, such that venue would be proper there,” (Opp. at 20
(emphasis added).
Accordingly, the Court denies Plaintiff’s
request for venue discovery.
e. Transfer
As venue is not proper in this district despite this
matter’s long history before this Court,16 the Court must either
dismiss the action, or “if it be in the interest of justice,
transfer [the] case” to a district “in which it could have been
brought.”
28 U.S.C. § 1406(a).
This decision “lies within the
sound discretion of the district court.”
Blakely v. Lew, 607 F.
App’x 15, 18 (2d Cir. 2015) (citation omitted).
“A ‘compelling
reason’ for transfer is generally acknowledged when a
plaintiff’s case, if dismissed, would be time-barred on refiling
in the proper forum.”
Daniel v. Am. Bd. Of Emergency Med., 428
F.3d 408, 435-36 (2d Cir. 2005) (citation omitted).
Plaintiff argues that dismissal “might threaten any ability
for [him] to seek the recovery he is due, as the vast majority
of Teleflex’s infringing conduct is past the six-year statute of
limitations (if implicated).”
(Opp. at 20.)
Even when a
statute of limitations may preclude a plaintiff from refiling
See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
818 (1988) (noting the “age-old rule that a court may not in any
case, even in the interest of justice, extend its jurisdiction
where none exists” even when parties “spend years litigating
claims only to learn that their efforts and expense were wasted
in a court that lacked jurisdiction”).
16
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the same complaint in the proper district, “courts will not
‘waste judicial resources by transferring a case that is clearly
doomed.’”
Daniel, 428 F.3d at 436 (citation omitted).
At this
stage, the Court does not conclude that Plaintiff’s infringement
claim is “clearly doomed,” warranting dismissal.
Thus, transfer
will serve the interests of justice in this case.
Venue is proper in the Eastern District of North Carolina
because Teleflex’s commercial headquarters is in Morrisville,
North Carolina, “where most of its commercial functions,
including Marketing, Research & Development, Information
Technology, Regulatory Affairs, Quality Affairs, Sales
Operations, and Customer Service, are located.”
(MTD at 16;
Reply at 9-10.)
Accordingly, the Court finds that transfer is appropriate,
and, accordingly, the instant case shall be transferred to the
Eastern District of North Carolina.
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