`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Defendant.
`
`
`
`
`REPORT AND RECOMMENDATION
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`Case No. 2:16-CV-00439-JRG-RSP (Member)
`
`
`
`
`
`
`SEMCON IP INC.,
`
`
`
`v.
`
`STMICROELECTRONICS INC.,
`
`
`
`STMicroelectronics, Inc. (“STM”) moves to dismiss this case for improper venue under
`
`Rule 12(b)(3), or alternatively to transfer the case to the Northern District of Texas under
`
`28 U.S.C. 1406(a), in view of the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods
`
`Group Brands LLC, 137 S. Ct. 1514 (2017).
`
`STM filed a motion to dismiss under Rule 12 on July 6, 2016, arguing that the case should
`
`be dismissed for lack of subject matter jurisdiction or for failure to state a claim because, according
`
`to STM, Semcon lacked standing to sue. See Dkt. 22. STM’s objection to venue was not included
`
`in this motion and was therefore waived. See Fed. R. Civ. P. 12(h)(1)(A), 12(g)(2); see also Albany
`
`Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, 909 (5th Cir. 1993). The Supreme Court’s
`
`decision in TC Heartland was not an intervening change in law excusing waiver. See, e.g., 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). Having waived the improper venue defense, STM
`
`
`
`1
`
`
`
`Case 2:16-cv-00439-JRG-RSP Document 38 Filed 08/10/17 Page 2 of 2 PageID #: 594
`
`cannot now seek transfer under § 1406(a). See id., 2017 WL 2651618, at *21. Accordingly, it is
`
`RECOMMENDED that STM’s motion to dismiss or transfer, Dkt. 34, be denied.1
`
`
`
`
`
`
`1 A party’s failure to file written objections to the findings, conclusions, and recommendations
`contained in this report within fourteen days after being served with a copy shall bar that party
`from de novo review by the district judge of those findings, conclusions, and recommendations
`and, except on grounds of plain error, from appellate review of unobjected-to factual findings, and
`legal conclusions accepted and adopted by the district court. Fed. R. Civ. P. 72(b)(2); see Douglass
`v. United Servs. Auto. Ass’n., 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
`
`
`
`
`2
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
