United States District Court, D. Delaware
before the Court is Plaintiffs motion for reconsideration
(D.I. 47) of the Court's opinion and order (D.I. 45, 46)
granting Defendants' motion to dismiss (D.I. 25) for
improper venue over Expedia, Inc. (WA). I have reviewed
the parties' briefing (D.I. 47, 51) and related papers
(D.I. 54, 58). I have also reviewed the parties' prior
briefing in support of the motion to dismiss (D.I. 26, 28,
30) and related papers (D.I. 38, 41). I held oral argument
for the motion to dismiss on November 16, 2017. (D.I. 43).
brought this action for patent infringement against
Defendants Expedia, Inc. (DE) ("Expedia-DE"),
Expedia, Inc. (WA) ("Expedia-WA"), and Orbitz
Worldwide, Inc. (D.I. 1). Expedia-WA is a Washington
corporation. (D.I. 24 14 (Second Amended Complaint)). In
opposition to the prior motion to dismiss, Plaintiff argued
that venue over Expedia-WA is proper under the second prong
of 28 U.S.C. § 1400(b), which provides that a patent
infringement action may be brought in any district
"where the defendant has committed acts of infringement
and has a regular and established place of business." I
dismissed the case with respect to Expedia-WA on the grounds
that Plaintiff failed to show Expedia-WA has a regular and
established place of business in Delaware. (D.I. 45 at
theory for venue was based on an alleged agency relationship
between Expedia-WA and its parent company Expedia-DE.
Plaintiff argued that Expedia-DE is a Delaware corporation
and thus establishes proper venue in Delaware for its agent
Expedia-WA. I found that Plaintiff conflated the two prongs
of § 1400(b). The first prong provides that venue is
proper in the district where the defendant resides
(i.e., is incorporated). I held that while a
principal's regular and established place of business may
in some cases determine an agent's regular and
established place of business, Plaintiff had no support for
the proposition that "a principal's
residence can determine an agent's regular and
established place of business." (Id. (quotation
now raises a new theory for venue. Rather than focusing on
Expedia-WA's relationship with its parent company,
Plaintiff focuses on its relationship with a subsidiary.
Plaintiff asserts that Expedia-WA wholly owns CSC Holdings
Inc. ("CSC Holdings"), which wholly owns CruiseShip
Centers International, Inc. ("CSC International"),
which has a regular and established place of business in
Delaware. (D.I. 47 at 3, Ex. 1). Both CSC Holdings and CSC
International are Canadian corporations. (Id., Ex.
court's decision "may be altered or amended if the
party seeking reconsideration shows at least one of the
following grounds: (1) an intervening change in the
controlling law; (2) the availability of new evidence that
was not available when the court granted the [motion]; or (3)
the need to correct a clear error of law or fact or to
prevent manifest injustice." Max's Seafood Cafe
ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999). "'[N]ew evidence,' for
reconsideration purposes, does not refer to evidence that a
party obtains or submits to the court after an adverse
ruling. Rather, new evidence in this context means evidence
that a party could not earlier submit to the court because
that evidence was not previously available." Howard
Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602
F.3d 237, 252 (3d Cir. 2010).
U.S.C. § 1400(b)
Circuit law governs venue under § 1400(b). The plaintiff
bears the burden of establishing proper venue. In re ZTE
(USA) Inc., 890 F.3d 1008, 1013 (Fed. Cir. 2018). Under
the second prong of § 1400(b), venue is proper in a
district where the defendant has "committed acts of
infringement" and has a regular and established place of
business. 28 U.S.C. § 1400(b).
regular and established place of business standard requires
more than the minimum contacts necessary for establishing
personal jurisdiction or for satisfying the doing business
standard of the general venue provision." In re
Cray, 871 F.3d 1355, 1361 (Fed. Cir. 2017). In
particular, the phrase "regular and established place of
business" creates three distinct 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." Id. at
the first requirement, the "place" of business need
not be a "fixed physical presence in the sense of a
formal office or store," In re Cordis Corp.,
769 F.2d 733, 737 (Fed. Cir. 1985), but it must be "a
physical, geographical location in the district from which
the business of the defendant is carried out."
Cray, 871 F.3d at 1362.
the second requirement, the place of business must be
"regular" and "established." A business
may be "regular" if it "operates in a steady,
uniform, orderly, and methodological manner," as opposed
to operating through "sporadic activity."
Id. at 1362 (brackets and quotation marks omitted).
A business is "established" if it is "settled
certainly, or fixed permanently" for "a meaningful
period of time." Id. at 1362 (brackets
omitted). Thus, "a single act pertaining to a particular
business" is not "regular," but a "series
of such acts" may be. Id. Likewise, a presence
at a semiannual trade show is not "established,"
but "a five-year continuous presence in the
district" is. Id. (citing Knapp-Monarch Co.
v. Casco Prods. Corp., 342 F.2d 622, 625 (7th Cir.
1965); Remington Rand Bus. Serv. v. Acme Card Sys.
Co., 71 F.2d 628, 629 (4th Cir. 1934)).
the third requirement, the place of business must be "of
the defendant." It may not be a place that is
"solely a place of the defendant's employee."
Id. at 1363 (addressing the fact that the
defendant's only connection to the district was through
two employees working remotely from their homes in that
district). Relevant considerations include (i) whether the
defendant "owns or leases the place, or exercises other
attributes of possession or control over the place,"
(ii) 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," (iii)
whether the defendant "holds out a place for its
business," such as by "list[ing] the alleged place
of business on a website, or in a telephone or other
directory[, ] or plac[ing] its name on a sign associated with
or on the building itself," and (iv) "the nature