OptoLum Incorporated v. Cree Incorporated, No. 2:2016cv03828 - Document 90 (D. Ariz. 2017)

Court Description: ORDER granting 72 Motion to Amend/Correct. Cree shall file its amended answer within 14 days from the date of this order. Granting 81 Motion for Leave to File Surreply. The Clerk is directed to file the lodged surreply (Doc. 82 ). Cree's Motion to Dismiss or Transfer for Improper Venue (Doc. 73 ) is granted. The Clerk is directed to transfer this action to District Court for the Middle District of North Carolina. Signed by Judge Douglas L Rayes on 7/24/17.(DXD)
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OptoLum Incorporated v. Cree Incorporated 1 Doc. 90 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 OptoLum, Inc., Plaintiff, 10 11 ORDER v. 12 No. CV-16-03828-PHX-DLR Cree, Inc., 13 Defendant. 14 15 16 Before the Court are Cree’s motion for leave to amend its answer and motion to 17 dismiss or transfer for improper venue. (Docs. 72, 73.) The motions are fully briefed. 18 (Docs. 77-82.) Neither side has requested oral argument. For reasons stated below, the 19 motions are granted and the case is transferred to the Middle District of North Carolina. 20 I. Background 21 OptoLum and Cree manufacture and sell LED lights. At issue in this case is 22 technology used inside LED lightbulbs allowing them to have the look and feel of 23 traditional incandescent bulbs while also having energy efficiency, a long useful life, and 24 a relatively low cost. OptoLum claims to be the inventor of this technology and alleges 25 that Cree infringes on its patents and misappropriated its reputation as inventor. 26 OptoLum’s amended complaint asserted claims for false advertising, unjust 27 enrichment, and patent infringement. (Doc. 32.) Cree moved to transfer the case to 28 North Carolina, where Cree is located, for the convenience of the parties and witnesses Dockets.Justia.com 1 pursuant to 28 U.S.C. § 1404, and moved to dismiss the false advertising and unjust 2 enrichment claims for failure to state a claim for relief under Rule 12(b)(6). (Docs. 22, 3 24). On March 21, 2017, the Court denied the transfer request but granted the Rule 4 12(b)(6) motion. (Docs. 22, 49.) One month later, Cree filed an answer admitting that 5 venue is proper. (Doc. 60 ¶ 33.) 6 On June 2, Cree filed the present motion to amend its answer to deny that venue is 7 proper pursuant to Rule 15(a)(2) and the motion to dismiss for improper venue pursuant 8 to Rule 12(b)(3). OptoLum contends that Cree waived the defense of improper venue by 9 omitting the defense from its answer and initial motion to dismiss. Cree argues that the 10 defense has not been waived because it was not available until the Supreme Court issued 11 its recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 12 1514 (2017), which made clear that a corporation “resides” only in its State of 13 incorporation for purposes of the patent venue statute. The Court agrees with Cree and 14 therefore grants leave to amend and transfers this case to its proper venue in North 15 Carolina. 16 II. Motion for Leave to Amend Answer 17 Cree seeks leave to amend its answer pursuant to Rule 15(a)(2), which generally 18 requires the Court to “freely give leave when justice so requires.” As noted above, 19 however, Cree admitted in its answer that venue is proper and did not seek dismissal for 20 improper venue under Rule 12(b)(3) when it filed its initial motion to dismiss. Thus, to 21 the extent this defense was available to Cree when it filed the motion to dismiss and 22 answer, the defense has been waived pursuant to Rule 12 because it was not included in 23 the motion, the answer, or an amendment allowed as a matter of course under Rule 24 15(a)(1). 25 A. Waiver of Defenses and Amendment of Pleadings Under Rules 12 and 15 26 “Rule 12(g) operates in conjunction with Rule 12(h) to require that all defenses 27 permitted to be raised by motion, which are then available, must be included in the same 28 motion[.]” Bromfield v. McBurney, No. C07-5226RBL-KLS, 2009 WL 674517, at *5 -2- 1 (W.D. Wash. Mar. 12, 2009). Specifically, Rule 12(g) provides that “a party that makes a 2 motion under this rule must not make another motion under this rule raising a defense or 3 objection that was available to the party but omitted from its earlier motion.” Fed. R. 4 Civ. P. 12(g)(2). Rule 12(h) further provides that a party waives any defense listed 5 in Rule 12(b)(2)-(5) by “omitting it from a motion in the circumstances described in Rule 6 12(g)(2)” or by failing to “include it in a responsive pleading or in an amendment 7 allowed by Rule 15(a)(1) as a matter of course.” Fed. R. Civ. P. 12(h)(1)(A)-(B). 8 In other words, a defendant “who does not initially raise certain [available] 9 defenses – lack of personal jurisdiction, improper venue, improper process, and improper 10 service of process – cannot invoke those defenses later on.” Paleteria La Michoacana v. 11 Producto Lacteos, 905 F. Supp. 2d 189, 192 (D.D.C. 2012). Although Rule 15(a)(2) 12 provides for liberal amendment of pleadings, the language of Rule 12(h) establishes that 13 this amendment procedure is not available to raise the defense of improper venue under 14 Rule 12(b)(3) (or the other defenses listed above) if the defense was available to the party 15 at the time it filed the initial pleading. See id.; Bromfield, 2009 WL 674517, at *5. Thus, 16 in order to decide whether to grant Cree leave to amend to deny venue is proper, the 17 Court must first determine whether the venue defense was available to Cree when it filed 18 its answer and initial motion to dismiss. 19 B. Venue in Patent Cases: TC Heartland, VE Holding, and Fourco 20 Cree argues that it did not waive the defense of improper venue because the 21 defense was not available to it before the Supreme Court’s decision in TC Heartland on 22 May 22, 2017. A host of district court cases, many cited by OptoLum in opposition to 23 Cree’s motion, have concluded that TC Heartland did not constitute an intervening 24 change in law sufficient to qualify as an exception to the waiver doctrine.1 The Court 25 1 26 27 28 See Cobalt Boats, LLC v. Sea Ray Boats, Inc., No. 2:15cv21, 2017 WL 2556679, at *3 (E.D. Va. June 7, 2017); Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, 2:15-CV-00037-RWS-RSP, 2017 WL 2651618, at *20 (E.D. Tex. June 20, 2017); iLife Techs., Inc. v. Nintendo of Am., Inc., No. 3:13-cv-04987, 2017 WL 2778006, at *5-7 (N.D. Tex. June 27, 2017); The Chamberlain Grp., Inc. v. Techtronic Indus. Co., No. 16C-6097 (N.D. Ill. June 28, 2017); Amax, Inc. v. ACCO Brands Corp., No. 16-10695NMG, 2017 WL 2818986, at *2-3 (D. Mass. June 29, 2017); Infogation Corp. v. HTC -3- 1 does not agree with those decisions, finding instead that TC Heartland affected a 2 “sea change” in the law of venue for patent cases. Westech Aerosol Corp. v. 3M Co., 3 No. C17-5067-RBL, 2017 WL 2671297, at *2 (W.D. Wash. June 21, 2017). 4 TC Heartland affirmed the Supreme Court’s 1957 decision in Fourco Glass Co. v. 5 Transmirra Products Corp., 353 U.S. 222, 226 (1957), and reversed the Federal Circuit’s 6 1990 decision in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (1990), 7 by clarifying that the patent venue statute, 28 U.S.C. § 1400(b), not the general venue 8 statute, 28 U.S.C. § 1391(c), defines where a domestic corporation “resides” for purposes 9 of patent infringement litigation. In Fourco, the Supreme Court held that § 1400(b) was 10 the sole and exclusive provision controlling venue in patent infringement actions, and 11 that it was not to be supplemented by the general venue provisions of § 1391(c). 353 12 U.S. at 229. In 1988, however, Congress amended § 1391(c) to provide that “[f]or 13 purposes of venue under this chapter,” a defendant corporation shall be deemed “to reside 14 in any judicial district in which it is subject to personal jurisdiction at the time the action 15 is commenced.” Two years later, the Federal Circuit in VE Holding held that the newly 16 added phrase “[f]or purposes of venue under this chapter” was “exact and classic 17 language of incorporation” and § 1391(c), as amended, therefore established the 18 definition for all other venue statutes, including § 1400(b): 19 clearly applies to § 1400(b), and thus redefines the meaning of the term ‘resides’ in that 20 section.” 917 F.2d at 1578-80. VE Holding remained good law for nearly 30 years until 21 it was abrogated by TC Heartland two months ago. “On its face, § 1391(c) 22 C. Cree Did Not Waive the Venue Defense 23 Many of the district court cases finding waiver of the venue defense have 24 premised their rulings on the notion that circuit courts have no authority to “overrule” the 25 Supreme Court, and therefore Fourco has always governed venue in patent cases despite 26 27 28 Corp., No. 16-cv-01902, 2017 WL 2869717, at *4 (S.D. Cal. July 5, 2017); Navico, Inc. v. Garmin Int’l, Inc., No. 2:16-CV-190, 2017 WL 2957882, at *2-3 (E.D. Tex. July 11, 2017); Reebok Int’l Ltd. v. TRB Acquisitions LLC, No. 3:16-cv-1618-SI, 2017 WL 3016034, at *3 (D. Or. July 14, 2017). -4- 1 VE Holding. But these cases fail to explain why, if Fourco remained controlling, courts 2 throughout the country consistently applied VE Holding in patent litigation for nearly 30 3 years. 4 The district court in Cobalt Boats noted that “[t]he Supreme Court has never 5 overruled Fourco, and the Federal Circuit cannot overrule binding Supreme Court 6 precedent.” 2017 WL 2556679, at *3. But VE Holding did no such thing. Rather, when 7 faced with a recent congressional amendment to the general venue statute, VE Holding 8 sought to interpret Congress’ intent: 9 10 11 12 13 The issue, then, is not whether the prior cases, including Supreme Court cases, determined that under different statutory language Congress’ intent was that § 1400(b) stood alone. The issue is, what, as a matter of first impression, should we conclude the Congress now intends by this new language in the venue act. 917 F.2d at 1579. 14 In short, VE Holding did not purport to “overrule” Fourco, but instead determined 15 whether Congress intended to do so when it amended § 1391(c). As the Supreme Court 16 explained in TC Heartland, the Federal Circuit concluded in VE Holding that 17 “subsequent statutory amendments had effectively amended § 1400(b) as construed in 18 Fourco, with the result that § 1391(c) now supplies the definition of ‘resides’ in 19 § 1400(b).” 137 S. Ct. at 1517. The Supreme Court made clear that “the only question 20 [it] must answer is whether Congress changed the meaning of § 1400(b) when it amended 21 § 1391” – the same issue VE Holding addressed 27 years earlier. Id. at 1520. The 22 Supreme Court disagreed with VE Holding in this regard, but it did not do so on the 23 ground that VE Holding had improperly “overruled” Fourco.2 24 Contrary to Optolum’s assertion, TC Heartland changed the venue landscape just 25 26 27 28 2 VE Holding was not the only court to determine that the amendment to § 1391(c) had the effect of redefining corporate residence for purposes of § 1400(b). In Regents of University of California v. Eli Lilly & Co., 734 F. Supp. 911, 913 (N.D. Cal. 1990), the district court found that it was reasonable to conclude that Congress recognized its amendment to § 1391(c) would essentially overturn Fourco because Congress is presumed to legislate with knowledge of judicial precedent. -5- 1 as VE Holding had done 27 years earlier. Indeed, the Supreme Court recognized that 2 following its decision in Fourco in 1957, the venue “landscape remained unchanged until 3 1988, when Congress amended the general venue statute, § 1391(c)[.]” TC Heartland, 4 137 S. Ct. at 1519 (emphasis added). The Court further noted that following VE Holding 5 in 1990, “no new developments occurred” until Congress adopted the current version of 6 § 1391 in 2011.” Id. (emphasis added). Thus, the Supreme Court itself acknowledged 7 that the venue landscape has changed and developed since its decision 60 years ago in 8 Fourco, including when VE Holding “announced its view” of the effect of Congress’ 9 amendment of § 1391(c) on the patent venue statute. Id. Moreover, even after the 10 amendments to § 1391 in 2011, courts throughout the country continued to apply VE 11 Holdings and declined to hold that it was no longer “good law.” Telesign Corp. v. Twilio, 12 Inc., No. CV 15-3240 PSG, 2015 WL 12765482, at *5 (C.D. Cal. Oct. 16, 2015) 13 (collecting cases). This, of course, changed dramatically after TC Heartland. 14 It is worth noting that even Congress has recognized that VE Holding, for better or 15 worse, was the prevailing law that bound lower courts and litigants alike. In 2008, the 16 Senate explained that VE Holding’s “change in the law” brought with it significant 17 changes in litigation tactics and forum shopping. S. Rep. No. 110-259, at 25 (2008). In 18 2015, the House of Representatives stated that Congress “must correct” the “infamous 19 decision in VE Holding” and “restore § 1400 to its role of protecting patent owners and 20 accused infringers from the burden of being forced to litigate in remote locations.” H.R. 21 Rep. No. 114-235, at 34 (2015). If VE Holding affected a significant change in law in 22 1990 – as Congress lamented about in its legislative reports – its reversal in TC 23 Heartland more than two decades later likewise constituted an intervening change in the 24 law. 25 The Court agrees with Cree and the district court in Westech that “TC Heartland 26 changed the venue landscape.” 2017 WL 2671297, at *2. “For the first time in 27 years, 27 a defendant may argue credibly that venue is improper in a judicial district where it is 28 subject to the court’s personal jurisdiction but where it is not incorporated and has no -6- 1 regular and established place of business.” Id. “There is little doubt that the Court’s 2 decision in TC Heartland . . . was a change in the law of venue[.]” In re Sea Ray Boats, 3 Inc., No. 2017-124, 2017 WL 2577399, at *1 (Fed. Cir. June 9, 2017) (Newman, J., 4 dissenting). Cree therefore did not waive the defense of improper venue by omitting the 5 defense from its initial pleading and motion to dismiss. See Westech, 2017 WL 2671297, 6 at *2. 7 OptoLum argues, and several district courts have found, that the defense of 8 improper venue has always been available because other patent defendants would have 9 “ultimately succeeded in convincing the Supreme Court to reaffirm Fourco, just as the 10 petitioner in TC Heartland did.” Elbit Sys., 2017 WL 2651618, at *20; see Cobalt Boats, 11 2017 WL 2556679, at *3; iLife Techs., 2017 WL 2778006, at *7; Reebok Int’l, 2017 WL 12 3016034, at *3. But this would have taken some convincing, and until TC Heartland, no 13 defendant succeeded in doing so in the 27 years following VE Holding. To suggest that 14 the defense of improper venue has always been available, and that TC Heartland did not 15 effect a change in the law “because it merely affirms the viability of Fourco[,]” Cobalt 16 Boats, 2017 WL 2556679, at *3, ignores the significant impact of VE Holding and the 17 patent bar’s reliance on the case for nearly three decades. 18 The district court in iLife Technologies concluded that Fourco has consistently 19 remained good law because, “except where congressional abrogation of a Supreme Court 20 decision is express, only the Supreme Court may overrule one of its precedents[.]” 2017 21 WL 2778006, at *7. But even if this were true, it does not change the fact that before TC 22 Heartland, the intervening 27 years created reliance on VE Holdings by numerous 23 litigants, including Cree. See id. The district courts in iLife Technologies and Elbit 24 Systems found that this reliance – even if reasonable – does not change the “harsh reality” 25 that any party could have ultimately succeeded in challenging VE Holding. 2017 WL 26 2651618, at *20; 2017 WL 2778006, at *7. 27 The Court does not agree that Cree should suffer such a “harsh reality” in this 28 case. Because VE Holding was binding on lower courts, any motion by Cree to dismiss -7- 1 for improper venue before TC Heartland likely would have been opposed by OptoLum 2 and certainly would have been deemed meritless by the Court. See Elbit Sys., 2017 WL 3 2651618, at *20. Cree, of course, could have incurred the time and expense of appealing 4 to the Federal Circuit and losing, see In re TC Heartland, 821 F.3d 1338 (Fed. Cir. 2016), 5 and then filing a petition with the Supreme Court in the hope that it would grant certiorari 6 and reverse VE Holding. But the Court does not find that this potentially lengthy and 7 expensive litigation strategy, with the mere possibility that VE Holding might be 8 overturned, rendered the defense of improper venue “available” to Cree when it filed its 9 answer and initial motion to dismiss. 10 In Reebok International, the district court found that a defense is unavailable if its 11 legal basis did not exist at the time of the answer or motion “so that it was for all practical 12 purposes impossible for the defendants to interpose their defense.” 2017 WL 3016034, 13 at *3 (quoting Gilmore v. Palestinian Interim Self-Gov’t Auth., 8 F. Supp. 3d 9, 13 14 (D.D.C. 2014)). 15 practical purposes,” possible for Cree to assert the defense of improper venue in light of 16 the binding nature of VE Holding and its presence on the venue landscape for the past 17 few decades. The Court so finds even though certain patent defendants in other cases 18 chose to raise the defense in light of the ongoing litigation in TC Heartland. (See Doc. 19 82 at 2-3 n.3.) As explained above, the Court either would have denied a motion to 20 dismiss by Cree as unfounded based on VE Holding or stayed its ruling pending a 21 decision in TC Heartland. OptoLum asserts no unfair prejudice from Cree now raising 22 the venue defense after TC Heartland was decided. For reasons explained above, the Court finds that it was not, “for all 23 The purpose of Rules 12(g) and (h) is to “require consolidation of defenses and 24 thus discourage delay and dilatory tactics.” Gundy v. Cal. Dep’t of Corr., No. 1:12-cv- 25 0120-LJO-MJS, 2013 WL 522789, at *6 (E.D. Cal. Feb. 11, 2013). The Court finds no 26 intentional delay on the part of Cree, as it filed its motions to amend and dismiss less than 27 two weeks after TC Heartland was decided. Moreover, the rules of civil procedure – 28 including Rules 12(g) and (h) – are to be construed and employed to “secure the just, -8- 1 speedy, and inexpensive determination of every action[.]” Fed. R. Civ. P. 1. Civil 2 litigation in federal court “is not a game of ‘gotcha.’” Loomis v. City of Puyallup Police 3 Dep’t, No. C02-5417-RJB, 2005 WL 1036445, at *8 (W.D. Wash. May 3, 2005). The 4 Court finds that deeming Cree to have waived the defense of improper venue under the 5 specific circumstances of this case would be inconsistent with both the language and 6 spirit of the rules of procedure and not otherwise in the interest of justice. See Westech, 7 2017 WL 2671297, at *2. 8 The procedural posture of this case is closer to Westech than the host of cases 9 finding waiver. In each of those cases, the defendant sought to raise the venue defense 10 late in the litigation. Indeed, the defendant in Cobalt challenged venue only a few weeks 11 before trial. 2017 WL 2556679, at *2. The court explicitly denied “any postponement 12 of the trial to conduct further proceedings regarding venue[.]” Id. at *4. Similarly, the 13 defendants in Elbit Systems raised the venue defense “less than two months from trial.” 14 2017 WL 2651618, at *19; see also iLife Techs., 2017 WL 2778006, at *1 (three months 15 before trial and more than three years after suit was filed); The Chamberlain Grp., No. 16 16-C-6097, at *3 (less than three months before trial); Amax, Inc., 2017 WL 2818986, at 17 *1 (more than a year after case was brought and after summary judgment); Infogation 18 Corp., 2017 WL 2869717, at *3 (nearly a year after litigation commenced and after claim 19 construction); Navico, 2017 WL 2957882, at *2 (after claim construction and only two 20 months before trial). In this case, by contrast, Cree timely filed its motion to amend 21 (Doc. 59 ¶ 2), the litigation is still in its early stages, and the Markman hearing is three 22 months away (¶ 12). Under these circumstances, the Court finds that Cree has not 23 waived the venue defense. See Westech, 2017 WL 2671297, at *2 (finding no waiver and 24 granting leave to amend where the venue challenge was made early in the case.) 25 D. Leave to Amend Should Be Granted 26 Having found that Cree did not waive the venue defense, the Court must decide 27 whether to grant leave to amend under Rule 15(a)(2). That rule requires the Court to 28 “freely give leave when justice so requires.” Leave need not be granted, however, where -9- 1 the amendment “would cause the opposing party undue prejudice, is sought in bad faith, 2 constitutes an exercise in futility, or creates undue delay.” Ascon Props., Inc. v. Mobil 3 Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 4 (1962)). 5 OptoLum does not argue, and the Court otherwise does not find, that leave to 6 amend is sought in bad faith or would cause undue delay or prejudice. Rather, OptoLum 7 contends that amendment of the answer would be futile because Cree has waived the 8 venue defense. (Doc. 77 at 4-5.) The Court disagrees for reasons explained above. 9 OptoLum further contends that the proposed amendment would be futile because, 10 although Cree seeks to deny that venue is proper, the proposed amended answer does not 11 also affirmatively assert the defense of improper venue. (Id. at 5.) This omission could 12 easily be cured through the submission of a revised amended answer if it were necessary, 13 but the Court concludes that it is not. Simultaneously with its proposed amended answer, 14 Cree filed its motion to dismiss for improper venue. 15 sufficient to raise the venue defense. 16 15(a)(2), the Court concludes that leave to amend is in the interest of justice and should 17 be granted. 18 The Court finds this motion Given the liberal amendment policy of Rule In summary, Cree’s motion for leave to amend its answer (Doc. 72) is granted. 19 Cree shall file its amended answer within fourteen days from the date of this order. 20 III. Motion to Dismiss or Transfer for Improper Venue 21 Once a defendant has raised an objection to venue, the plaintiff has the burden of 22 showing that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 23 491 (9th Cir. 1979); Golden Scorpio Corp. v. Steel Horse Bar & Grill, 596 F. Supp. 2d 24 1282, 1286 (D. Ariz. 2009). The applicable patent venue statute, 28 U.S.C. § 1400(b), 25 provides that any civil action for patent infringement “may be brought in the judicial 26 district where the defendant resides, or where the defendant has committed acts of 27 infringement and has a regular and established place of business.” The parties do not 28 dispute that under TC Heartland, Cree resides in North Carolina because this is its State - 10 - 1 of incorporation. (Docs. 32, 60 ¶¶ 30.) 2 OptoLum asserts that Cree has sold infringing products at Home Depot stores in 3 Arizona and that there is “reasonable basis for believing” that Cree has a regular and 4 established place of business in the State. (Doc. 78 at 13.) In determining whether a 5 defendant has such a place of business, “the appropriate inquiry is whether the corporate 6 defendant does its business in that district through a permanent and continuous presence 7 there[.]” In re Cordis, 769 F.2d 733, 737 (Fed. Cir. 1985). OptoLum claims that Cree 8 has at least one sales manager and an engineer located in Arizona. (Doc. 78 at 13-15.) 9 OptoLum states that there likely is additional evidence relating to venue, but the record is 10 simply too undeveloped at this point to say with certainty. (Id. at 16.) To the extent the 11 Court is inclined to examine the issue more closely, Cree requests the opportunity to 12 conduct discovery and have an evidentiary hearing. (Id.) 13 The Supreme Court has cautioned that “the provisions of § 1400(b) are not to be 14 liberally construed[.]” In re Cordis, 769 F.2d at 736. The Court finds that OptoLum has 15 not, on the present record, met its burden of showing that venue in this Court is proper 16 under § 1400(b). 17 “Whether to permit discovery relating to venue is within the Court’s discretion.” 18 Kaia Foods, Inc. v. Bellafiore, 70 F. Supp. 3d 1178, 1183 (N.D. Cal. 2014); see Trusted 19 Health Prods., Inc. v. Blue Cross Labs., Inc., No. 5:13-375-DCR, 2014 WL 3586256, at 20 *2 (E.D. Ky. July 21, 2014) (“the scope of discovery concerning jurisdiction, venue and 21 transfer is within the Court’s discretion”); Va. Innovation Scis., Inc. v. Samsung Elec. 22 Co., 928 F. Supp. 2d 863, 874 (E.D. Va. 2013) (“district courts enjoy broad discretion in 23 determining whether to grant limited discovery to explore jurisdictional facts 24 (including venue)”); Eclipse IP, LLC v. ECCO USA, Inc., No. 5:12CV160, 2013 WL 25 5838675, at *6 (N.D. W. Va. Oct. 30, 2013) (same). Having considered the totality of the 26 circumstances and the litigation of this case to date, the Court finds that allowing 27 discovery, additional briefing, and an evidentiary hearing on the issue of venue “would 28 be contrary to the ‘just, speedy, and inexpensive determination’” of the merits of the - 11 - 1 action. Cobalt Boats, 2017 WL 2556679, at *4. The Court therefore will exercise its 2 discretion and deny discovery on the venue issue. 3 “Given the lack of venue, the Court has discretion to dismiss this case or, in the 4 interest of justice, transfer it to a district where it could have been brought.” Medbox Inc. 5 v. Kaplan, No. CV-13-00949-PHX-GMS, 2013 WL 6094577, at *4 (D. Ariz. Nov. 20, 6 2013) (citing 28 U.S.C. § 1406(a)). There is no dispute that this action could have been 7 brought in North Carolina. (Doc. 49 at 2.) Rather than dismiss the action, the Court will 8 exercise its discretion to transfer the case to the District Court for the Middle District of 9 North Carolina. 10 IT IS ORDERED that Cree’s motion for leave to amend it answer (Doc. 72) is 11 GRANTED. Cree shall file its amended answer within fourteen (14) days from the date 12 of this order. 13 IT IS FURTHER ORDERED that OptoLum’s motion for leave to file omnibus 14 surreply memorandum (Doc. 81) is GRANTED. The Clerk is directed to file the lodged 15 surreply (Doc. 82). 16 IT IS FURTHER ORDERED that Cree’s motion to dismiss or transfer for 17 improper venue (Doc. 73) is GRANTED. The Clerk is directed to transfer this action to 18 District Court for the Middle District of North Carolina. 19 Dated this 24th day of July, 2017. 20 21 22 23 24 Douglas L. Rayes United States District Judge 25 26 27 28 - 12 -