PRECISION FABRICS GROUP, INC. v. TIETEX INTERNATIONAL, LTD.
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 11/7/2017; that Tietex's motions to amend its answers and to transfer these actions for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) (Doc. 211) are GRANTED as follows: 1. Tietex shall file its amended answers in both cases (see Docs. 268-1, 268-2) forthwith. Because the only amendment permitted is Tietex's denial of venue in this district, PFG's prior replies will be deemed responsive to the answers and counterclaims. 2. Pursuant to 28 U.S.C. § 1406(a), these actions are TRANSFERRED to the United States District Court for the District of South Carolina, Spartanburg Division, for further proceedings. Associated Cases: 1:13-cv-00645-TDS-LPA, 1:14-cv-00650-TDS-LPA (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PRECISION FABRICS GROUP, INC.
TIETEX INTERNATIONAL, LTD.,
PRECISION FABRICS GROUP, INC.
TIETEX INTERNATIONAL, LTD.,
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
International, Ltd. (“Tietex”), to amend its answers to contest
venue and to transfer these related actions to the District of
(Doc. 211.) 1
Tietex contends that its failure to
initially raise a venue defense should be excused in light of the
1 Unless otherwise indicated, all citations are to the docket in case
number 1:13cv645, as the filings are substantively identical.
Tietex initially sought dismissal or alternatively transfer, it now seeks
only transfer. (Doc. 274 at 4.)
Supreme Court’s recent decision in TC Heartland, LLC v. Kraft Foods
Group Brands, LLC, 137 S. Ct. 1514 (2017), which Tietex contends
constitutes an intervening change of law.
The court recently
permitted discovery on the motion, and it has been fully briefed.
For the reasons set forth below, the court will grant Tietex’s
motion to amend its answers and, finding that venue is improper in
this district, exercise its discretion to transfer these actions
to the District of South Carolina, pursuant to 28 U.S.C. § 1406(a).
Plaintiff Precision Fabrics Group, Inc. (“PFG”) filed these
actions on August 6, 2013, and August 5, 2014, alleging that
infringe on PFG’s U.S. Patent Nos. 8,501,639 (‘639 Patent) and
8,796,162 (‘162 Patent), respectively.
(Doc. 1 at 2; Doc. 29 at
In its answers and subsequent filings, Tietex did not
contest venue in this district.
(Doc. 6 at 2, 5; Doc. 28 at 2;
Doc. 32 at 2.)
PFG brought the original action on the same day that the ‘639 Patent
was issued by the U.S. Patent and Trademark Office (“PTO”). (Doc. 1 at
2.) Tietex voluntarily appeared and answered PFG’s first complaint prior
to being served with process. (Doc. 6.) On August 5, 2014, the PTO
issued the ‘162 Patent to PFG, which PFG alleges is a continuation of
its ‘639 Patent. (Doc. 1 at 3 (case no. 1:14cv650).) After failing to
obtain Tietex’s consent to amend its complaint, PFG filed a separate
action, alleging that Tietex infringed on the ‘162 Patent. (Doc. 1 (case
no. 1:14cv650).) The court subsequently granted PFG’s motion for leave
to amend its complaints and consolidate the proceedings.
In the ensuing four years, the court has conducted a Markman
hearing, construed the claims (Doc. 57), entertained a motion for
(Doc. 152), and entertained a motion for reconsideration of the
summary judgment ruling (Doc. 172).
The case was set for trial
during the July 2017 term of court.
On May 22, 2017, the Supreme Court decided TC Heartland,
holding that under 28 U.S.C. § 1400(b), “a domestic corporation
‘resides’ only in its State of incorporation for purposes of the
patent venue statute.”
137 S. Ct. at 1517.
In reaching this
conclusion, the Court rejected VE Holding Corp. v. Johnson Gas
Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990), where the Federal
Circuit held that congressional amendment to 28 U.S.C. § 1391(c)
applied to § 1400(b) such that a defendant corporation was deemed
to “reside” in any district where it was subject to personal
Id. at 1584.
The next day, on May 23, 2017, Tietex moved to continue the
trial and gave notice that “[i]n light of this change in the law
yesterday and because Tietex is not a corporation of the state of
North Carolina, Tietex is now considering the impact on venue in
this Court and any necessary motion related to venue will be filed
promptly after Tietex considers the full effects of TC Heartland.”
(Doc. 175 at 6.)
Tietex contended that “[s]etting a trial date in
September, October, or November 2017 will allow the Court ample
time for consideration of any such a motion.”
(Id. at 6-7)
opposed the motion to continue trial (Doc. 177), but on May 26 the
court continued the trial to October 4, 2017 (Doc. 178).
filed the present motions to amend its answers and transfer venue
on August 7, 2017.
On September 15, 2017, the court held a hearing to consider
the motions and, acting within its discretion, granted PFG’s
request to conduct limited discovery into whether venue was proper
in the Middle District of North Carolina.
See InVue Sec. Prods.
v. Mobile Techs., Inc., No. 3:17-cv-00270-MOC-DSC, 2017 U.S. Dist.
LEXIS 125693, at *2 (W.D.N.C. Aug. 9, 2017) (citing Mylan Labs,
Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 2003)).
this development, the court delayed trial to October 30, 2017.
Once the parties filed updated briefing as a result of the venue
discovery, the court, on October 16, issued an order directing the
parties to stand down from trial preparation pending resolution of
B. Factual Background
The evidence, viewed in the light most favorable to PFG as
the non-moving party, establishes the following:
Tietex is a South Carolina corporation with its principal
place of business in Spartanburg, South Carolina.
(Doc. 6 at 2.)
It manufactures and sells a broad range of fabrics nationwide,
including some using a flame-retardant at issue in this case.
(Id.; Doc. 32 at 5.) The company has been registered to do business
in North Carolina since 2001 (Doc. 275-11 (proof of business
registration)) and, for purposes of these motions, acknowledges it
has conducted sales of the allegedly infringing product in this
(listing sales attributable to Doug Owens)). Since at least August
of 2013, Tietex has not owned, rented, or leased any real property
in this district.
(Doc. 274-1, Wallace Dep. at 42:12-23, 103:6-
25; Doc. 274-2, Owens Dep. 124:8-24.)
However, from 1991 until
December of 2014, it did employ a regional sales manager, Doug
Owens, who worked from his personal residence located in the
(Doc. 275-7, Owens Dep. at 11:12-19; Doc. 268 at 14;
Doc. 268-3 at 3.) 3
encompassed most of the Southeast and the Midwest, including this
(Doc. 263-3 at 3; Doc. 274-2, Owens Dep. 21:6-16; Doc.
274-1, Wallace Dep. at 43:18-25.) 4
Tietex provided Owens with a
A second employee briefly worked from his home within North Carolina
for a few months in early 2013, prior to the time these actions were
filed. (Doc. 274-3 at 2.) While it is unclear whether he resided in
the district, it is not relevant because his employment ended in May
2013, prior to issuance of the relevant patents. (Id.)
Based on the current record, the exact scope of Owens’s sales territory
(See Doc. 274-1, Wallace Dep. at 43:18-25 (describing
Owens’s sales territory as “most of the Southeastern United States and
the Midwest, with the exception of a few places, quite possibly”).)
While Owens described his sales territory as the “Southeast” during the
relevant period in question, (Doc. 274-2, Owens Dep. 21:6-16), Tietex’s
business card that listed his cell phone number (containing a local
“336” area code) as well as his home address.
275-4, Wallace Dep. at 70:12-73:20.) 5
(Doc. 275-3; Doc.
While the customers located
within the district did not constitute a large portion of his
overall sales, Owens occasionally visited some customers within
the district to promote Tietex’s products.
(Doc. 274-2, Owens
Dep. at 53:22-54:18; Doc. 274 at 10.) Owens accounted for millions
of dollars in sales in 2013 and 2014, several hundred thousand
dollars of which originated from customers in this district. (Doc.
275 at 18; Doc. 275-8; Doc. 277.)
Spartanburg, South Carolina, and all such orders were received,
fulfilled, and shipped from that location.
(Doc. 274 at 10; Doc.
274-1, Wallace Dep. at 102:15-103:5; Doc. 274-2, Owens Dep. at
Owens occasionally placed orders for new customers
sales records submitted by PFG indicate that he served a substantial
number of customers located in the Midwest (Doc. 277 at 7, 11, 14-15
(noting sales in Texas, Arkansas, Kentucky, Missouri, Indiana, Illinois,
Ohio, Wisconsin, and Minnesota)), and served some customers located in
the Northeast (id. at 12 (noting sales in Pennsylvania)) as well as the
Southwest (id. at 13-14 (noting sales in Arizona and California)).
An internal Tietex document did list Owens’s home telephone number.
(Doc. 275-3 (listing home telephone number as “Business Phone 2”); Doc.
275-4, Wallace Dep. at 16:8-17:23.)
However, there is no indication
that Owens used his home telephone to conduct business (see Doc. 275-4,
Wallace Dep. at 16:1-19:17) or listed the number on his business card
(see id. at 70:12-73:20; Doc. 275-3).
authority to bind the company (Doc. 274-1, Wallace Dep. at 102:1114).
To facilitate his work, he kept “[s]mall sample swatches” of
fabric as well as marketing materials in his home (Doc. 274-2,
maintained any inventory there (see Doc. 274 at 11; Doc. 274-1,
Wallace Dep. at 101:19-21; Doc. 274-2, Owens Dep. at 41:2-43:16;
Tietex also provided him with a company car, which was
registered in the company’s name to his home address.
6; Doc. 275-7, Owens Dep. at 27:13-28:25.)
He was reimbursed for
the taxes and expenses associated with his use of the car (Doc.
275-7, Owens Dep. at 27:13-28:25, 30:4-25), as well as his cell
phone (Doc. 275-4, Wallace Dep. at 19:2-17).
Tietex did not pay any part of Owens’s residential expenses
or exercise any control over his home.
No customers ever visited his residence, nor did
Tietex ever hold meetings there.
(Doc. 274-1, Wallace Dep.
(Id.; Doc. 274-2, Owens Dep. at
Similarly, Tietex did not publicly advertise Owens’s
home as its place of business.
(See Doc. 274 at 14-15; Doc. 274-
1, Wallace Dep. at 101:1-4, 101:22-102:10; Doc. 274-2, Owens Dep.
While acknowledging the “late state of this case,” Tietex
argues that its motions are timely in light of “an emerging trend
for courts to recognize that TC Heartland was a complete change in
the venue law” after 27 years of Federal Circuit precedent to the
(Doc. 212 at 2-3.)
On the merits, Tietex argues that
TC Heartland and applicable precedent make clear that venue is
improper in this district.
PFG argues that Tietex’s motion should be denied because
Tietex waived its right to object to venue and TC Heartland is not
an intervening change in law that would excuse Tietex’s failure to
timely raise this defense.
(Doc. 260 at 3.)
In the alternative,
PFG contends that the intervening law exception should not apply
because a transfer at this late stage of the litigation would
unduly prejudice it.
(Doc. 275 at 2-3; Doc. 260 at 4.)
asserts that Tietex waived any right to challenge venue by its
continued participation in the litigation and delay in bringing
the present motions.
(Doc. 275 at 11-12.)
argues that venue is proper in this district.
On the merits, PFG
(Doc. 275 at 14;
Doc. 260 at 4.) 6
PFG also argues that Tietex failed to comply with this court’s order
permitting venue discovery.
(Doc. 275 at 13.)
This argument is
unavailing. First, PFG has not moved for further relief. Second, even
assuming (without deciding) that Tietex failed to provide discovery that
PFG seeks, PFG has not demonstrated that it should be entitled to
additional discovery, particularly in light of the Federal Circuit’s
recent decision in In re Cray Inc., No. 2017-129, 2017 WL 4201535 (Fed.
Cir. Sept. 21, 2017). See Cutsforth, Inc. v. LEMM Liquidating Co., LLC,
No. 12-CV-1200 (SRN/LIB), 2017 WL 3381816, at *5 (D. Minn. Aug. 4, 2017)
(denying request for limited venue discovery in five-year patent
litigation, noting “[i]f [the plaintiff] cannot at this stage identify
facts that support a claim that Defendants have a ‘regular and
established place of business’ in [this district], the Court cannot
fairly conceive that it would be able to do so after more delay has been
Tietex’s Motions to Amend Answers
Federal Rule of Civil Procedure 15(a)(2) provides that “a
party may amend its pleading only with the opposing party's written
consent or the court's leave.”
Leave to amend should be freely
given “when justice so requires.”
Fed. R. Civ. P. 15(a)(2).
may be denied where it “would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the
amendment would have been futile.”
U.S. ex rel. Nathan v. Takeda
Pharm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013) (quoting
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc)).
“Delay alone is an insufficient reason to deny leave to
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir.
1999) (citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th
Delay must be accompanied by undue prejudice, bad
faith, or futility.
Id.; Foman v. Davis, 371 U.S. 178, 182 (1962).
“belatedly . . . change the character of the litigation,” such as
Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d
597, 604 (4th Cir. 2010) (citing Deasy v. Hill, 833 F.2d 38, 42
(4th Cir. 1987)); Laber, 438 F.3d at 427.
PFG does not contend Tietex is acting in bad faith.
question is whether granting Tietex leave to amend its answers
would be futile or unduly prejudicial to PFG. 7
For the reasons
set forth below, the court finds that it would not.
reaching the questions of futility and the merits, however, the
court must address the question of waiver.
Venue under § 1400(b)
“Venue is a waivable personal privilege of defendants.” Hand
Held Prod., Inc. v. Code Corp., No. 2:17-167-RMG, 2017 WL 3085859,
at *1 (D.S.C. July 18, 2017) (citing Leroy v. Great W. United
Corp., 443 U.S. 173, 180 (1979)).
“In most instances, the purpose
of statutorily specified venue is to protect the defendant against
the risk that a plaintiff will select an unfair or inconvenient
place of trial.”
Leroy, 443 U.S. at 183–184; Hoover Grp., Inc. v.
Custom Metalcraft, Inc., 84 F.3d 1408, 1410 (Fed. Cir. 1996)
(“Venue requirements exist for the benefit of defendants.”)
Venue in patent infringement actions is governed exclusively
by 28 U.S.C. § 1400(b).
TC Heartland, 137 S. Ct. at 1520.
PFG also argues that Tietex’s motions should be denied because they
failed to include proposed amended answers, as required by Local Rule
15.1. (Doc. 260 at 3.) Tietex’s initial failure was quickly cured,
however, with its filing of a proposed amended answer in each case that
added a simple sentence denying venue. (Doc. 268 at 1; Doc. 268-1; Doc.
268-2.) Therefore, this technical defect should not prevent amendment
given the underlying purpose of Local Rule 15, the simplicity of the
amendment, the lack of identifiable prejudice, and (as noted below) the
significance of the late-blooming Supreme Court decision. See Robinson
v. Pepsi Bottling Grp., No. 1:13CV729, 2014 WL 2048127, at *4 (M.D.N.C.
May 19, 2014) (“The obvious purpose [of Local Rule 15.1] is to avoid
having cases thrust into limbo on such generalized requests that may
later prove unsupported.”)
§ 1400(b), “[a]ny civil action for patent infringement may be
brought in the judicial district where the defendant resides, or
where the defendant has committed acts of infringement and has a
regular and established place of business.”
28 U.S.C. § 1400(b).
While seemingly straightforward, the statute’s application has
been the subject of conflicting interpretations.
In 1957, the Supreme Court held that § 1400(b) was the
exclusive venue statute for patent cases and that a domestic
corporation could “reside” only in its state of incorporation.
Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228
In 1990, however, the Federal Circuit, which exercises
congressional amendment to the general venue statute, 28 U.S.C.
§ 1391(c), applied in patent cases.
VE Holding, 917 F.2d at 1584.
Under this more liberal approach, venue in patent cases became
proper in any district where a defendant is subject to personal
The Federal Circuit’s precedent prevailed,
In particular, Congress amended § 1391(c) to provide that “[f]or
purposes of venue under this chapter, a defendant that is a corporation
shall be deemed to reside in any judicial district in which it is subject
to personal jurisdiction at the time the action is commenced.”
Heartland, 1137 S. Ct. at 1519 (quoting Judicial Improvements and Access
to Justice Act, Pub. L. No. 100-702, sec. 1013(a), §1391(c), 102 Stat.
4642, 4669 (1988)). The Federal Circuit reasoned that the phrase “[f]or
purposes of venue under this chapter” was “exact and classic language
of incorporation” such that § 1391(c) established a uniform definition
for all other venue statutes under the same “chapter,” which included
§ 1400(b). Id. at 1519-20 (quoting VE Holding, 917 F.2d at 1579).
surviving certiorari petitions to the Supreme Court, until the
Supreme Court’s May 22, 2017 decision in TC Heartland.
Holding Corp. v. Johnson Gas Appliance Co., 499 U.S. 922 (1991)
(denying certiorari petition); Century Wrecker Corp. v. Vulcan
Equip. Co., 923 F.2d 870 (Fed. Cir. 1990) (table), cert. denied,
499 U.S. 962 (1991). 9
Though TC Heartland reaffirmed the Supreme Court’s Fourco
holding that “‘reside[nce]’ in § 1400(b) . . . refers only to the
State of incorporation,” it rejected VE Holding’s conclusion that
the congressional amendment to § 1391(c) overrode § 1400(b).
Heartland, 137 S. Ct. at 1520.
In so doing, the Court abrogated
the Federal Circuit’s nearly 30-year precedent that applied a
personal jurisdiction standard to venue decisions in patent cases.
A defendant’s right to contest venue arises from 28 U.S.C.
§ 1406, which provides that a “district court of a district in
which is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it could
have been brought.”
28 U.S.C. § 1406(a).
As a general rule, a
While the denial of a petition for certiorari is not an expression on
the merits, United States v. Carver, 260 U.S. 482, 490 (1923), it is
relevant to determining whether it was reasonable for a party to raise
such a defense under the equitable doctrine of waiver, particularly in
cases where the Federal Circuit has exclusive appellate jurisdiction
over such matters, CG Tech. Dev., LLC v. FanDuel, Inc., No. 2:16-CV00801-RCJ-VCF, 2017 WL 3207233, at *1 n.1 (D. Nev. July 27, 2017).
defendant will waive its right to contest venue if it fails to
challenge venue either before its responsive pleading or as part
of its responsive pleading.
Fed. R. Civ. P. 12(b), 12(h)(1); 28
jurisdiction of a district court of any matter involving a party
who does not interpose timely and sufficient objection to the
Because Tietex failed to timely contest venue, the court
must determine whether it has waived its right to do so.
An exception to the general rule of waiver exists “when there
has been an intervening change in the law recognizing an issue
that was not previously available.”
Holland v. Big River Minerals
Corp., 181 F.3d 597, 605 (4th Cir. 1999).
As the Fourth Circuit
[t]he intervening law exception to the general rule that
the failure to raise an issue timely in the district
court waives review of that issue on appeal applies when
‘there was strong precedent’ prior to the change, such
that the failure to raise the issue was not unreasonable
and the opposing party was not prejudiced by the failure
to raise the issue sooner.
Big River Minerals Corp., 181 F.3d at 605–06 (4th Cir. 1999)
(quoting Curtis Publ'g Co. v. Butts, 388 U.S. 130, 143 (1967));
see also Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir.
2014) (“[A] party cannot be deemed to have waived objections or
defenses which were not known to be available at the time they
could first have been made.” (quoting Hawknet, Ltd. v. Overseas
Shipping Agencies, 590 F.3d 87, 92 (2d Cir. 2009))); Simpson
Performance Products, Inc. v. NecksGen, Inc., No. 5:16-CV-00153RLV-DCK,
In patent infringement actions, Fourth Circuit law applies
“to procedural matters that are not unique to patent law.” Beverly
Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564 (Fed.
While there remains some uncertainty whether Federal
Circuit law on the intervening law exception is substantively
identical to Fourth Circuit law.”
Hand Held, 2017 WL 3085859, at
*2 (citing Minton v. Nat'l Ass'n of Sec. Dealers, Inc., 336 F.3d
1373, 1377 (Fed. Cir. 2003)). 10
Tietex contends that TC Heartland qualifies as an intervening
change in law.
(Doc. 212 at 2.)
PFG urges the court to follow
what it characterizes as “the emerging consensus” to the contrary
(Doc. 260 at 21), but, irrespective, to avoid applying it given
the late stage of the litigation and Tietex’s delay in filing the
present motions (Doc. 260 at 13, 17; Doc. 275 at 8, 12).
In the event a material distinction could be said to exist, the better
view favors application of Fourth Circuit law because the question is
not unique to patent law. See Simpson Performance, 2017 WL 3616764, at
*3 n.2 (W.D.N.C. Aug. 23, 2017); Boston Sci. Corp. v. Cook Grp. Inc.,
No. 15-980-LPS-CJB, 2017 WL 3996110, at *4 (D. Del. Sept. 11, 2017).
The Federal Circuit has yet to directly address this issue, 11
and lower courts remain somewhat divided.
“The majority of cases
have found that TC Heartland does not constitute intervening law
Columbia Sportswear N. Am., Inc. v. Seirus
3877858, at *6 (D. Or. Sept. 5, 2017) (collecting cases); Fox
Factory, Inc., v. SRAM, LLC, Nos. 3:16-CV-00506-WHO, 3:16-cv03716-WHO, 2017 WL 4551486, at *7 (N.D. Cal. Oct. 11, 2017) (“The
majority of cases still hold that patent venue law did not change
and no exception to waiver applies.”).
These opinions rely on the
fact that “[t]he Supreme Court has never overruled Fourco, and the
Federal Circuit cannot overrule binding Supreme Court precedent.”
Cobalt Boats, LLC v. Sea Ray Boats, Inc., No. 2:15CV21, 2017 WL
2556679, at *3 (E.D. Va. June 7, 2017); Columbia Sportswear, 2017
On four occasions, the Federal Circuit has declined to grant mandamus
relief from district court judgments denying motions to dismiss for
improper venue in light of TC Heartland, holding that the district courts
committed no clear abuse of discretion. In re Hughes Network Sys., LLC,
No. 2017-130, 2017 WL 3167522, at *1 (Fed. Cir. July 24, 2017); In re
Sea Ray Boats, Inc., No. 2017-124, 2017 WL 2577399, at *1 (Fed. Cir.
June 9, 2017); In re Techtronic Indus. N. Am., Inc., No. 2017-125, 2017
U.S. App. LEXIS 16324, at *3 (Fed. Cir. July 25, 2017); In re Nintendo
of Am., Inc., No. 2017-127, 2017 U.S. App. LEXIS 14835, at *3-4 (Fed.
Cir. July 26, 2017). In these decisions, the Federal Circuit declined
to decide whether TC Heartland constituted an intervening change in law
and held that mandamus was unavailable under the circumstances. See,
e.g., In re Hughes, 2017 WL 3167522, at *1 (“Our ruling is based largely
on the fact that Hughes filed its motion only after the TC Heartland
case was decided by the Supreme Court and less than two months before
trial.”); In re Sea Ray Boats, 2017 WL 2577399, at *1 (declining to grant
mandamus relief where case was “on the eve of trial”). But see In re Sea
Ray Boats, 2017 WL 2577399, at *1 (Newman, J. dissenting) (“There is
little doubt that the Court's decision in TC Heartland  was a change
in the law of venue . . . .”).
WL 3877858, at *6 (collecting cases).
Under this rationale,
district courts have held that “the conflict between Fourco and VE
Holding was a defense that was available to Defendants just as
easily as it was to the plaintiff in TC Heartland, who initially
raised the argument before Plaintiff filed this case.”
Boats, 2017 WL 2556679, at *3; Elbit Sys. Land & C4I Ltd. v. Hughes
Network Sys., LLC, No. 2:15-CV-00037-RWS-RSP, 2017 WL 2651618, at
*20 (E.D. Tex. June 20, 2017) (“While such a motion might have
been viewed as meritless in a lower court, that does not change
the harsh reality that [the defendant] would have ultimately
succeeded in convincing the Supreme Court to reaffirm Fourco, just
as the petitioner in TC Heartland did.”); Reebok Int'l Ltd. v. TRB
Acquisitions LLC, No. 3:16-CV-1618-SI, 2017 WL 3016034, at *3 (D.
Or. July 14, 2017) (same).
However, a “growing number of district courts have reached
the opposite conclusion.”
Smart Wearable Techs. Inc. v. Fitbit,
Inc., No. 3:16CV00077, 2017 WL 3725630, at *3 (W.D. Va. Aug. 29,
2017) (collecting cases); Columbia Sportswear, 2017 WL 3877858, at
*7 (“[A] growing minority of cases that disagree with Cobalt Boats
These cases have recognized that “TC Heartland
affected a ‘sea change’ in the law of venue for patent cases.”
OptoLum, Inc. v. Cree, Inc., No. CV-16-03828-PHX-DLR, 2017 WL
3130642, at *2 (D. Ariz. July 24, 2017); Westech Aerosol Corp. v.
3M Co., No. C17-5067-RBL, 2017 WL 2671297, at *2 (W.D. Wash. June
Similarly, these opinions reject the notion that an improper venue
Heartland ultimately prevailed on the issue.
See, e.g., OptoLum,
2017 WL 3130642, at *4; Simpson Performance, 2017 WL 3616764, at
*5 (collecting cases).
This court agrees with those courts that conclude that TC
Heartland effected a fundamental, intervening change in patent
It is true that the Federal Circuit could never have
But VE Holding never purported to do so.
§ 1391(c) necessarily altered the interpretation of § 1400(b).
Holding, 917 F.2d at 1575.
Indeed, the Federal Circuit made plain
that “Section § 1391(c) as it was in Fourco is no longer.”
1579; see OptoLum, 2017 WL 3130642, at *2.
The Supreme Court in TC Heartland similarly acknowledged the
impact of the 1988 amendments on the Federal Circuit’s decision in
effectively unchanged until 1988.”
TC Heartland, 137 S. Ct. at
1519 (emphasis added); Simpson Performance, 2017 WL 3616764, at *5
(“[B]oth the Federal Circuit and the Supreme Court identified the
fact that the venue landscape had changed significantly in the
post-Fourco Glass/pre-TC Heartland period as the basis for the
Federal Circuit's decision in VE Holding.”).
Supreme Court focused the question before the Court as follows:
“the only question we must answer is whether Congress changed the
meaning of § 1400(b) when it amended § 1391.”
S. Ct. at 1520. 12
TC Heartland, 137
In concluding that Congress did not, the Court
expressly rejected VE Holding.
interpretation adopted in TC Heartland was not “available” to
Tietex prior to the Supreme Court’s May 22, 2017 decision, because
it conflicted directly with the strong precedent set by the Federal
Circuit in VE Holding.
This “clearly foreclosed any reasonable
argument [Tietex] could have made” to contest venue.
Performance, 2017 WL 3616764, at *6 (“VE Holding remained binding
precedent on this Court, and every other district court relative
to patent litigation, for twenty-seven years, with the Federal
Circuit reaffirming its ruling in VE Holding multiple times prior
Promotional Prod., Inc., 395 F.3d 1275, 1280 (Fed. Cir. 2005))).
The Supreme Court specifically addressed the current version of § 1391,
as amended in 2011. The 2011 amendment changed the 1988 preamble of
§ 1391(c) from “[f]or purposes of venue under this chapter” to “[f]or
all venue purposes” and added a savings clause to § 1391(a) stating that
the venue statute did not apply when “otherwise provided by law.” TC
Heartland, 137 S. Ct. at 1521. The Court rejected the notion that the
2011 amendments reflected any congressional intent to ratify the Federal
Circuit's decision in VE Holding. Id.
In addition to the Federal Circuit, members of Congress similarly
recognized the binding nature of VE Holding.
OptoLum, 2017 WL
3130642, at *4 (citing S. Rep. No. 110-259, at 25 (2008); H.R.
Rep. No. 114-235, at 34 (2015)).
When Tietex filed its answers in these cases, some two and
one-half years before the Supreme Court’s decision in TC Heartland,
this court would have been required to apply VE Holding to any
See Simpson Performance, 2017 WL 3616764, at *6
n.3 (noting the court’s own research found only one case during
the twenty-seven year period in which a district court did not
apply VE Holding) (citing West v. Terry Bicycles, Inc., No. 991498,
Venue was plainly proper under that standard.
The general maxim is that objections must be raised and preserved.
But it would be a harsh and unfair result in this context to punish
Tietex for not having contested venue at a time when the court
would have been unable to have granted relief.
See OptoLum, 2017
WL 3130642, at *4.
PFG argues nevertheless that excusing Tietex’s waiver would
unduly prejudice it.
(Doc. 260 at 26; 275 at 5-8.) 13
Within the context of the intervening change in law analysis, the
Fourth Circuit has suggested that a court should consider prejudice to
the plaintiff. Big River Minerals Corp., 181 F.3d at 605–06; Simpson
Performance, 2017 WL 3616764, at *7 n.4 (“However, in light of Big River
Mineral Corp.'s suggestion that courts must consider prejudice to the
plaintiff when applying the intervening change in the law exception to
the additional delay associated with any transfer as well as the
additional time and expense of resubmitting materials for trial.
(Doc. 260 at 27.)
In addition, it claims that it would be deprived
of “the Court’s expertise in this matter.”
PFG, Tietex forfeited any right to contest venue because it waited
“more than two months after the Supreme Court’s decision in TC
Heartland, and less than two months before trial is scheduled to
(Doc. 260 at 13; Doc. 275 at 2.)
Finally, PFG contends
that Tietex waived any remaining right to challenge venue by its
continued participation in the litigation.
(Doc. 275 at 11-12.)
Tietex argues that its delay in filing should not give rise
to waiver because it brought this issue to the attention of PFG
and the court the day after the Supreme Court’s decision in TC
(Doc. 268 at 7.)
Tietex also claims that its delay
was reasonable in light of the outcome of early decisions on this
During the intervening period, Tietex contends, it
simply complied with the court-imposed deadlines as opposed to
actively litigating substantive matters.
It also argues
that any “minor administrative inconvenience” associated with a
necessary to proceed with a trial in an improper venue.
the general rule of waiver, differences in the stage of the proceedings
at which the improper venue defense is first raised may be a proper basis
for reaching contrary conclusions as to whether a defendant may rely on
TC Heartland to overcome the general rule of waiver.”)
Further, it contends, PFG cannot seriously claim urgency as
Tietex is no longer selling the allegedly infringing products at
(Id. at 9.)
As one district court recently noted,
the Court, after excusing waiver based on TC Heartland,
should next proceed by assessing whether, in any event,
a defendant should not be permitted to press its effort
to change venue. Prototypical examples of where the
Court might reach such a conclusion include where a
defendant raises venue for the first time on the eve of
trial, or many months (or years) after TC Heartland was
handed down, or where dismissal or transfer would unduly
prejudice a plaintiff.
Boston Sci. Corp. v. Cook Grp. Inc., No. 15-980-LPS-CJB, 2017 WL
3996110, at *9 (D. Del. Sept. 11, 2017); Eyetalk365, LLC v. Skybell
Techs., Inc., No. 3:16-CV-702-FDW-DCK, 2017 WL 3669548, at *1
(W.D.N.C. Aug. 24, 2017) (“Even if a venue challenge is properly
preserved, a defendant may still waive that challenge by actively
participating in the case or by waiting a significant period of
time to seek relief.” (collecting cases)).
Though Tietex’s several-week delay in filing the present
motion could have been problematic, it did not prejudice PFG in
Tietex did raise the issue the day after TC
Heartland was decided.
(Doc. 175 at 6-7; Doc. 268 at 7.)
thereafter, the court moved the trial date to October. (Doc. 178.)
The parties’ involvement in the litigation during the interim was
almost exclusively limited to filing pre-trial evidentiary motions
required by orders of the court.
See Boston Sci. Corp., 2017 WL
3996110, at *10 (“[T]he Court does not deem it appropriate under
participation which was required by orders of this Court.”). 14
These motions would have been filed no matter where the action is
pending, and the court has not taken any action on them.
The court concludes that Tietex did not waive its venue
PFG cites to no undue prejudice from the interim
Apart from the limited discovery on the issue of venue,
the parties have proceeded in the same fashion as they would have
otherwise, and all pending motions will remain on the docket for
the trial judge to decide.
See Nautilus, Inc. v. Icon Health &
Fitness, Inc., No. C16-5393-RBL, 2017 U.S. Dist. LEXIS 148431, at
*4 (W.D. Wash. Sep. 13, 2017) (granting motion to transfer in spite
of 87-day delay in bringing motion to dismiss for improper venue
after TC Heartland, excusing the “short delay in bringing the
motion” and noting “[t]he work that was done in the 87 days between
the opinion and motion in preparation for the Markman hearing was
not wasted; the parties can presumably use the same document in
Utah”); Eyetalk365, LLC, v. Zmodo Technology Corporation Limited,
PFG notes that Tietex did move for limited discovery from PFG during
the intervening period (Doc. 181 at 7), a request this court denied (Doc.
197 at 4).
No. 3:16-cv-00789-FDW-DCK, 2017 WL 4684189, at *3 (W.D.N.C. Oct.
18, 2017) (holding that defendant did not waive improper venue
defense under the intervening law exception in spite of two-month
intentional delay); cf. Chassen v. Fid. Nat'l Fin., Inc., 836 F.3d
291, 303 (3d Cir. 2016) (holding that the defendant’s approximately
arbitration following an intervening change in law did not result
in waiver where the defendant notified the plaintiffs of their
intention to engage in bipolar arbitration one month after the
decision was issued and “virtually no substantive or procedural
litigation occurred during this delay”).
PFG points out that this case is further developed than others
that were transferred in light of TC Heartland.
See, e.g., Hand
Held, 2017 WL 3085859, at *3 (“[L]itigation in this matter has
just begun.”); Maxchief Investments Ltd. v. Plastic Dev. Grp.,
LLC, No. 3:16-CV-63, 2017 WL 3479504, at *5 (E.D. Tenn. Aug. 14,
2017) (noting “the case is not so far along that a transfer would
frustrate judicial economy” where “[t]he Court has not issued any
rulings on claim construction and the parties have not yet filed
That may be.
But that is more a function
of the timing of TC Heartland than anything else.
In any event,
the stage of the litigation is relevant, but it is not dispositive
intervening law exception where “the parties have already filed
otherwise fully litigated this case up to the eve of trial”);
Cutsforth, Inc. v. LEMM Liquidating Co., LLC, No. 12-CV-1200
(SRN/LIB), 2017 WL 3381816, at *1, *4 (D. Minn. Aug. 4, 2017)
(recognizing improper venue defense in five-year-old case in spite
of the “advanced state of [the] litigation”); In re Sea Ray Boats,
2017 WL 2577399, at *2 (Newman, J., dissenting) (arguing in favor
of temporary stay less than one week before trial to determine
whether venue was appropriate).
participated in pre-trial briefings, and are otherwise actively
preparing for trial.
However, PFG has yet to articulate any
expenses related to a transfer.
(See Doc. 260 at 26-28.)
pending pretrial motions address the scope of permissible trial
evidence and would have been filed irrespective of the venue
Moreover, as Tietex notes, it no longer sells the
potential delay cannot be said to risk further injury to PFG.
even candidly acknowledges that “[a]lthough this case has been
litigated for over four years, the trial of this matter should be
relatively simple” as the issues have been narrowed for trial.
substantial prejudice would result from transferring this case to
a district that is, in PFG’s words, “literally next-door.”
260 at 29.)
For these reasons, the court concludes that Tietex did not
waive its right to contest improper venue under the circumstances
and should be granted an opportunity to amend its answers to
See Columbia Sportswear, 2017 WL 3877858, at
Whether Venue is Proper in this District
While the underlying interpretation of § 1400(b) is governed
by Federal Circuit law, In re Cray Inc., No. 2017-129, 2017 WL
4201535, at *4 (Fed. Cir. Sept. 21, 2017), the burden of proof for
a motion for improper venue is a procedural matter governed by
Fourth Circuit law, see Boston Sci. Corp., 2017 WL 3996110, at *4
(“That venue motions are procedural—and therefore governed by the
law of the regional circuit—is true even though the substantive
questions at issue may be controlled exclusively by Federal Circuit
law.”) (citing In re TLI Commc'ns LLC Patent Litig., 823 F.3d 607,
610 (Fed. Cir. 2016))).
Accordingly, when an objection to venue
has been raised under Federal Rule of Civil Procedure 12(b)(3),
“the burden lies with the plaintiff to establish that venue is
proper in the judicial district in which the plaintiff has brought
ATI Indus. Automation, Inc. v. Applied Robotics,
Inc., No. 1:09CV471, 2013 WL 1149174, at *7 (M.D.N.C. Mar. 19,
2013) (quoting Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp.
519, 526 (M.D.N.C. 1996)).
“To survive a motion to dismiss for
improper venue when no evidentiary hearing is held, the plaintiff
need only make a prima facie showing of venue.”
377 F.3d 402, 405 (4th Cir. 2004).
Mitrano v. Hawes,
In determining whether the
plaintiff has made a prima facie showing, the court may “consider
evidence outside the pleadings” and must “view the facts in the
light most favorable to the plaintiff.”
Aggarao v. MOL Ship Mgmt.
Co., 675 F.3d 355, 365–66 (4th Cir. 2012); Simpson Performance,
2017 WL 3616764, at *2.
Section 1400(b) provides that “[a]ny civil action for patent
infringement may be brought in the judicial district where the
defendant resides, or where the defendant has committed acts of
infringement and has a regular and established place of business.”
unambiguous requirements,” the patent venue statute “is not one of
those vague principles which, in the interests of some overriding
policy, is to be given a liberal construction.”
Cray, 2017 WL
4201535, at *4 (quoting Schnell v. Peter Eckrich & Sons, Inc., 365
U.S. 260, 262 (1961)).
Here, there is no dispute that Tietex is incorporated in South
Carolina and therefore does not “reside” in this district.
32 at 4.)
And, as noted above, Tietex has conceded for purposes
of these motions that “acts of infringement” were committed within
the district. (Doc. 273, Tr. at 16:18-20, 53:20-23.) The relevant
established place of business” within the Middle District of North
district courts have attempted to identify criteria to assist in
applying a statutory standard in the modern era.
Federal Circuit recently set forth three requirements for doing
so: “(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.”
Each must be met.
Cray, 2017 WL 4201535, at
However, as the Federal Circuit
counseled, “no precise rule has been laid down and each case
depends on its own facts.”
Id. at *5. 15
PFG contends that the evidence establishes each of the three
(Doc. 275 at 16.)
PFG notes that (1) Owens lived
and worked out of the same home office located within the district
for a period of over twenty years, using part of his home as a
This inquiry is properly limited to the time the cause of action
accrued and a reasonable time thereafter. Wi-LAN Inc. v. Lenovo (United
States), Inc., No. 17CV365-BEN-MDD, 2017 WL 3194692, at *3 (S.D. Cal.
July 27, 2017) (“[U]nder the patent venue statute, venue is properly
lodged in the district if the defendant had a regular and established
place of business at the time the cause of action accrued and suit is
filed within a reasonable time thereafter.”) (quoting Welch Sci. Co. v.
Human Eng'g Inst., Inc., 416 F.2d 32, 35 (7th Cir. 1969))).
sales office (id.); (2) Tietex provided Owens a company car, which
was registered in Tietex’s name and listed Owens’s home address
(id. at 17); (3) Owens maintained samples and marketing literature
in his home (id.); (4) Owens interacted with and generated sales
from customers located within the district (id. at 18); and (5)
Tietex provided Owens with business cards that identified his home
address and telephone number (id. at 16-17). 16
While it is highly doubtful that PFG has demonstrated a prima
facie case as to the first two requirements, 17 PFG’s failure on the
third is determinative.
PFG must present prima facie evidence
PFG’s effort to rest venue on the contention that Tietex maintained a
regular and established business at a High Point facility (in the
district) of Tietex Interiors, a former business unit of Tietex
International, is without merit. (Doc. 275 at 19-21.) In support of
this contention, PFG relies on two reports prepared by Dun & Bradstreet,
a commercial directory service. PFG notes that a 2012 Dun & Bradstreet
report listed Doug Owens as a “Principal” of Tietex Interiors and noted
his home address in Colfax, North Carolina. (Doc. 275-12 at 3.) In
addition, PFG relies on a 2016 Dun & Bradstreet report, which identified
a location within the district as an address of Tietex International,
not Tietex Interiors. (Doc. 275 at 20-21, Doc. 275-15 at 3.) However,
Tietex has provided sworn testimony that it maintained no facilities in
the district during the relevant period and that Tietex Interiors ceased
all business operations in 2009 when it was sold. (Doc. 268-3 at 4;
Doc. 275-4, Wallace Dep. at 89:17-91:7; Doc. 274-1, Wallace Dep. at
19:18-20:25, 25:1-9; Doc. 274-3 at 2-3 (unsworn counsel letter).)
Even if the evidence were sufficient to establish a “physical place”
in the district, PFG has not demonstrated that it was a “regular and
established” place of business. See Cray, 2017 WL 4201535, at *6 (“[I]f
an employee can move his or her home out of the district at his or her
own instigation, without the approval of the defendant, that would cut
against the employee's home being considered a place of business of the
defendant.”); Regents of the Univ. of Minnesota v. Gilead Scis., Inc.,
No. 16-CV-2915 (SRN/HB), 2017 WL 4773150, at *6 (D. Minn. Oct. 20, 2017)
(“While [the defendant] may have employed a sales force of approximately
a dozen people over at least a two-year period, the physical location
of that sales force is not permanently fixed.”)
that the regular and established business is “a place of the
defendant, not solely a place of the defendant's employee.”
2017 WL 4201535, at *6.
This means that “the defendant must
establish or ratify the place of business.”
Circuit has identified several important considerations for this
determination, including (1) whether the defendant owns, leases,
or otherwise exercises control over the premises; (2) “whether the
residence in the district”; (3) whether the defendant stored
inventory there to be sold or distributed from that place; and (4)
property in the district during the relative period in question,
nor is there any suggestion it otherwise exercised control over
(See Doc. 274-1, Wallace Dep. at 99:16-23;
PFG’s reliance on the fact that Tietex maintained a
company car within the district is unavailing.
See Regents of the
Univ. of Minnesota v. Gilead Scis., Inc., No. 16-CV-2915 (SRN/HB),
2017 WL 4773150, at *6 (D. Minn. Oct. 20, 2017) (“[L]ease payments
defendant's] regular and established physical place of business in
[the district].”); Am. Cyanamid Co v. Nopco Chem. Co., 388 F.2d
818, 820 (4th Cir. 1968) (finding venue improper where a regional
sales manager worked from his home located in the district and the
company provided him with a car that it rented and insured).
In addition, there is no evidence that Tietex ever conditioned
Owens’s employment on his residence in the district or played any
role in selecting its location.
(See Doc. 274 at 10-12.)
the reimbursement or support received by Owens was conditioned on
his location here.
(See Doc. 274-1, Wallace Dep. at 100:2-16.)
Like the employees in Cray, Owens was “free to live where [he]
chose as far as [the defendant] was concerned.”
Cray, 2017 WL
4201535, at *8 (quoting Grantham v. Challenge-Cook Bros., 420 F.2d
1182, 1185 (7th Cir. 1969)); Regents of the Univ. of Minnesota,
2017 WL 4773150, at *7.
While Owens served some customers located in the district and
may have assisted them in placing orders (Doc. 274-2, Owens Dep.
at 51:25-52:16), he did not sell products directly to customers,
maintain inventory, provide technical assistance, or otherwise
engage in activities that would suggest that Tietex operated a
regular and established business here.
Cf. In re Cordis Corp.,
769 F.2d 733, 737 (Fed. Cir. 1985) (finding venue proper under
§ 1400(b) where two sales representatives operating remotely had
accepted orders within the state, kept inventory in their homes,
and conducted seminars and technical consultations concerning the
product that was subject to the infringement action). 18
fact that Owens maintained “[s]mall sample swatches” of fabric and
literature at his home is insufficient to establish venue.
Regents of the Univ. of Minnesota, 2017 WL 4773150, at *6-7
(holding that the presence of twelve employees operating remotely
within the district was insufficient to support venue under §
1400(b), even where some employees maintained literature in their
Finally, Tietex did not represent Owens’s residence as its
own place of business.
Tietex did not list the address on its
website or in any directory, and it did not place the company’s
name on any signage at the location.
(Doc. 274-1, Wallace Dep. at
101:1-102:10; Doc. 274-2, Owens Dep. at 122:5-7); see Cray, 2017
WL 4201535, at *7.
The listing of Owens’s residential address and
In support of its argument that Owens provided “support and
consultation services” to customers, PFG relies on an incomplete entry
in a document prepared by Owens that references a burn test on a Tietex
fabric conducted by a customer within this district. (Doc. 275 at 18;
Doc. 275-9 at 3 (“work with HSM to get 100% Kingsdown filler, burn
However, Owens testified that while he would encourage
customers to conduct such a test, he would not do so himself for liability
reasons. (Doc. 274-2, Owens Dep. at 52:17-53:21.)
Owens’s sales revenue provides little evidence that Tietex maintained
a regular and established place of business in the district, as opposed
to simply “doing business” here. See Talsk Research Inc. v. Evernote
Corp., No. 16-CV-2167, 2017 WL 4269004, at *5 n.6 (N.D. Ill. Sept. 26,
2017); Cellular Dynamics Int'l, Inc. v. Lonza Walkersville, Inc., No.
17-CV-0027-SLC, 2017 WL 4046348, at *5 (W.D. Wis. Sept. 12, 2017).
Similarly, PFG’s reliance on fact that Tietex is registered to do
business in North Carolina (Doc. 275 at 19) provides little support that
it maintained a regular and established place of business within this
mobile telephone number on his business card indicates little
beyond the fact that he conducted business in the district.
Cray 2017 WL 4201535, at *8 (noting sales representative’s “social
media profiles and phone number indicate at most that he conducted
business from [the district], not that [the defendant] established
a place of business there”); Univ. of Ill. Found. v. Channel Master
Corp., 382 F.2d 514, 517 (7th Cir. 1967) (holding that a sales
representative operating from his home located in the district was
insufficient to establish venue under § 1400(b), even where his
business card listed his home address and phone number).
considering the complete record, the court holds that PFG has
failed to meet its burden of demonstrating a prima facie case that
venue is proper in this district under § 1400(b).
4201535, at *9.
Cray, 2017 WL
The evidence, when viewed in the light most
favorable to PFG, “merely show[s] that there exists within the
district a physical location where an employee of the defendant
carries on certain work for his employer.”
To hold otherwise
on this record would be inconsistent with the statute’s underlying
Id. at *5 (“Courts should be mindful of this history in
applying the statute and be careful not to conflate showings that
may be sufficient for other purposes, e.g., personal jurisdiction
establish proper venue in patent cases.”).
Remedy under 28 U.S.C. § 1406
When a case is brought in an improper venue, the district
court retains the discretion to “dismiss, or if it be in the
“However, transfer is ‘generally considered to be more
in the “interest of justice” than dismissal and, therefore, doubts
should be resolved in favor of preserving the action, particularly
where it appears that venue may be properly laid in the proposed
Simpson Performance, 2017 WL 3616764, at
*8 (quoting Nation v. United States Gov't, 512 F. Supp. 121, 12627 (S.D. Ohio 1981)); Columbia Sportswear, 2017 WL 3877858, at
Here, the parties do not contest that venue is proper in the
District of South Carolina. Given the late stage of the litigation
and consistent with Tietex’s request for transfer rather than
dismissal, the court finds that a transfer to the District of South
Carolina would serve the interest of justice, allowing for a prompt
resolution of the case on the merits.
For the foregoing reasons,
IT IS ORDERED that Tietex’s motions to amend its answers and
to transfer these actions for improper venue pursuant to Federal
Rule of Civil Procedure 12(b)(3) (Doc. 211) are GRANTED as follows:
Tietex shall file its amended answers in both cases (see
permitted is Tietex’s denial of venue in this district, PFG’s prior
replies will be deemed responsive to the answers and counterclaims.
Pursuant to 28 U.S.C. § 1406(a), these actions are
TRANSFERRED to the United States District Court for the District
of South Carolina, Spartanburg Division, for further proceedings.
Thomas D. Schroeder
United States District Judge
November 7, 2017
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