Zachary Robole*

Introduction

            Simply put, patent cases are in federal court. Thus, jurisdictional questions can sometimes be overlooked by patent practitioners. Nevertheless, it cannot be overstated how important it is that counsel knows where to file an infringement action to avoid risking a transfer, or worse, a dismissal. This essay provides basic practice points on civil procedure for patent litigators. More narrowly, the purpose is to highlight the interplay between subject matter jurisdiction, personal jurisdiction, and venue law and how that interplay specifically relates to patent law.

            Much of the basis of the confusion in this area can be boiled down to a simple question: Where is the defendant located? Seemingly a simple question, it is not simply answered. The reason for the complexity is that across the requirements of subject matter jurisdiction, personal jurisdiction, and venue, courts and statutes use words like “citizenship,” “domicile,” “home,” and “residence.” These words look synonymous. In some contexts, they are, but in others, they are not. These points will be considered in turn.

            It is important, here, to recognize that the law in this area has separated natural citizens from corporations from unincorporated entities (such as Limited Liability Companies (“LLCs”) which will be used as the representative example in this article). As will be shown below, sometimes these entities are treated similarly, but sometimes they are treated very differently.

Subject Matter Jurisdiction

            As a brief review into basic civil procedure, federal courts are courts of limited jurisdiction.^[1] This means they cannot hear all cases and must be given the power to do so by statute or the Constitution.^[2] Generally, there are two ways federal courts may hear a case. However, there is an additional third way that specifically applies to patent cases. A case must satisfy only one of these tests for a court to find it has subject matter jurisdiction. 

Diversity Jurisdiction

            A case may be heard by a federal court when the amount in controversy exceeds $75,000 and the parties are diverse in their citizenship; this is diversity jurisdiction.^[3] “Citizenship” is found in different ways depending on the entity being analyzed. A natural person’s citizenship is their place of physical presence coupled with their intent to remain there.^[4] Unlike natural persons, corporations can have citizenship in multiple locations.^[5] A corporation’s citizenship is each state it is incorporated, and where it has a principal place of business.^[6] The principal place of business is where a “corporation’s high level officers direct, control, and coordinate the corporation’s activities.”^[7] This is not necessarily where the corporation does the most business. Though it is not always the case, it is generally where its headquarters are located.^[8] A Limited Liability Company, or LLC, on the other hand, takes citizenship in each state wherein its members are citizens.^[9] That is, if an LLC was composed of 50 natural persons, each taking citizenship in their own state, the LLC would be a citizen of every state.

            As will be shown, diversity jurisdiction is virtually never the test used to meet the subject matter jurisdiction requirement in patent cases. However, practitioners must have this understanding of how “citizenship” is found under diversity jurisdiction so that they can better consider the tests under personal jurisdiction and venue that they certainly will have to face.

Federal Question Jurisdiction

            Another way subject matter jurisdiction can be met is through federal question jurisdiction.^[10] That is, if the case invokes a question of federal law the court may hear the case no matter who the parties are or how much money is in controversy. Much more could be written on this matter, but it is outside the scope of purposes for this essay.

Statute Specific

            One may think that because patent law invokes a question of federal law, federal question jurisdiction is how subject matter jurisdiction is met. But that is not necessarily true. Federal courts are given jurisdiction over patent infringement actions specifically through 28 U.S.C. § 1338. Because of this statute, patent practitioners should almost never find themselves worried they will be remanded to state court when asserting infringement.^[11]

As a final point of general practice, the right to assert a motion to dismiss for lack of subject matter jurisdiction is never forfeited nor is it waivable. It can be asserted at any point in a case, even on appeal. Additionally, courts are under an obligation to perform their own analysis of whether subject matter jurisdiction is met.^[12]

Personal Jurisdiction

            Personal jurisdiction is satisfied in one of two ways. First, personal jurisdiction can be found if the court has “general jurisdiction” over the defendant. Second, personal jurisdiction is satisfied if the court has “specific jurisdiction” over the defendant.

General Jurisdiction

            A finding of general jurisdiction means that a court in the forum state can hear any case against the defendant. The Supreme Court held in Goodyear that general jurisdiction is found when a defendant’s affiliations “are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”^[13] The question is thus presented: Does the test to determine if the defendant is “essentially at home” equate to the test for citizenship under a diversity jurisdiction inquiry?

            For a natural person, the Goodyear Court additionally said general jurisdiction is the person’s “domicile.”^[14]Another question is then presented: Does domicile equate to citizenship? The Supreme Court has not expressly held so, but other high courts have equated the two words (at least in a diversity jurisdiction analysis context).^[15] And lower courts have given no reason to believe the terms would not be equal in a general personal jurisdiction analysis.^[16]

            The rule for corporations is more direct. In Daimler AG, the Supreme Court held that the test for finding general jurisdiction over a corporation is at minimum the same as the test of citizenship under a diversity jurisdiction analysis.^[17]That is, a corporation is “essentially at home” where it is incorporated and where its principal place of business is.^[18]The Court did indicated that a corporation is at home in at least those places, and left the door open for the potential finding of general jurisdiction in other locations depending on the circumstances.^[19] But it rejected finding personal jurisdiction in the circumstance at hand in that case.^[20]

            Given the synonymity between the tests for diversity jurisdiction and general jurisdiction for natural persons and corporations, it would be logical to conclude that general jurisdiction for LLCs is found where each member is a citizen. But that is not the case. Courts have consistently held that LLCs should be treated as corporations for this matter and that they are “essentially at home” where they are formed and where their principal place of business is.^[21] These courts tend to base their holdings on a point in the Daimler AG case. That point being that one of the defendants in the case was an LLC but was treated the same as its corporation co-defendants.^[22] This is foreshadowing to what will be discussed in the venue section infra, but it is safe for patent practitioners to argue that LLCs should be treated as corporations for the purposes of general jurisdiction.

Specific Jurisdiction

            If general jurisdiction cannot be found, a court may still find that it has specific personal jurisdiction over a defendant. The test for specific jurisdiction is not clear but bases its progeny in International Shoe.^[23]

            Under a specific jurisdiction analysis, the first thing that needs to be evaluated is the long arm provision of the state in which the federal court sits.^[24] Some are as lenient as the U.S. Constitution allows, but those provisions can be more narrow.^[25] The constitutional test is one in which the defendant has established minimum contacts with the forum state when performing the alleged wrong so as to confer jurisdiction.^[26] Generally, courts will look to see if the defendant “purposefully availed” itself into the forum state.^[27] The scholarship in this area of the law is vast. For the purposes of this article only two of the Supreme Court cases in the International Shoe progeny are offered and are very briefly summarized. The focus is on what actions confer specific jurisdiction in patent infringement contexts. 

            The two main holdings in the specific jurisdiction progeny that relate to commerce are Asahi and McIntyre, both of which failed to provide any high level of clarity but discussed how placing a product in the “stream of commerce” would confer specific jurisdiction.^[28] Asahi, decided in 1987, was a split decision on the proper test for analysis.^[29]Some justices, led by Justice Brennan, opined that the test should be a more subjective and lenient standard of anticipation.^[30] The defendant merely needed to be aware that the final product would end up in the forum state.^[31]While others, led by Justice O’Connor, felt the test should be somewhat more strict and require evidence the defendant targeted the forum when marketing or selling the product.^[32]

McIntyre offered little clarity and did not change the law.^[33] It did not indicate that either test in Asahi was correct. But the plurality stated the inquiry should be whether the defendant’s activities manifested an intention to submit to the power of the forum state.^[34] Though what these activities may look like was not described. Since Asahi, the Federal Circuit has refused to take a side in the split.^[35]

Therefore, this area of the law is unclear. And it is difficult to offer a hardline rule on the matter as it pertains to patent cases. But some guide points can be pulled from the Federal Circuit’s cases attempting to apply Asahi and McIntyre. First, it is relatively clear that if plaintiff’s counsel can identify a distributor located in the forum state that sells the infringing product within that forum, specific jurisdiction will be met.^[36] More than that though, if plaintiff can show that the defendant was aware of its distributor’s contacts with the forum state, whether or not that distributor was actually located there, jurisdiction can still be found.^[37] However, if a plaintiff fails to show the defendant was directly related to the marketing or selling the product in the forum they will fail to show jurisdiction should be found.^[38] Further, sale of the infringing product to third parties that then sporadically or unsystematically chose to sell the product in the forum state does not create jurisdiction.^[39]

  Thus, although not the only route to satisfying this jurisdictional requirement, finding a steady distributor in the forum state or that the defendant likely knows is selling to the forum state is a practitioner’s best bet at satisfying the standard for specific jurisdiction.

Venue

            For most civil actions, venue is determined by 28 U.S.C. § 1391. However, venue for patent cases is expressly dictated by 28 U.S.C. § 1400(b). This provision can be broken into two subparts. It provides that venue in patent cases is proper either “[1] where the defendant resides, or [2] where the defendant has committed acts of infringement and has a regular and established place of business.”

Where the Defendant Has Committed Acts of Infringement and Has a Regular and Established Place of Business

            The second subpart of § 1400(b) was expressly analyzed by the Federal Circuit in In re Cray.^[40] There the court stated that the three general requirements relevant to the inquiry are that “(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.”^[41] All three of these requirements must be met.^[42]

            The court also offered points of inquiry into each prong of the analysis. First, the place must truly be physical.^[43]It does not necessarily need to be a store front but “there must still be a physical geographical location in the district from which the business of the defendant is carried out.”^[44] Second, the business must be regular, and that is “steady, uniform, orderly, and methodical.”^[45] Sporadic or one-time business operations cannot satisfy.^[46] Last, the place must be that of the defendant or ratified by the defendant’s actions.^[47] That is, the defendant must be shown to have control over the premises or accepted that they exist.^[48] An employee being located in the forum alone does not give rise to the place being of the defendant.^[49]

            Therefore, courts have held that merely finding a defendant’s distributor or retailer does not satisfy this portion of § 1400(b).^[50] If a practitioner would like to show proper venue this way, they will likely need to find some sort of physical location that is controlled by the defendant that is selling or making the infringing products.

Resides

            The landmark holding on this portion of § 1400(b) comes from TC Heartland in 2017.^[51] That case specifically looked at the word “resides” in § 1400(b) as it relates to corporations. Since the decision, “resides” has not been analyzed as it relates to natural citizens. But prior to TC Heartland district courts supplemented § 1400(b) with the general venue statute (§ 1391) to again equate it with domicile.^[52]

            However, it is important to know that the TC Heartland court specifically criticized application of the general venue statute to § 1400(b) within the corporation context. The central issue in that case was whether amendments to the general venue statute and specifically changes to § 1391(a) and (c) also modified the meaning of § 1400(b).^[53] The court held that the amendments did not and that a domestic corporation “resides” only in its State of incorporation for purposes of the patent venue statute.^[54]

            Therefore, this calls into question if the lower courts were proper in equating § 1391’s definition of “resides” to the term as applied to natural person defendants under § 1400(b). Further, and likely more importantly, like it did in Daimler AG for general personal jurisdiction, the TC Heartland Court found itself creating a test for corporations while applying the test to an unincorporated entity.^[55] However, unlike the opinion in Daimler AG, the TC Heartland opinion made note of this, and left the door open for future argument that the TC Heartland standard should not apply to LLC’s and unincorporated entities the same as it should for corporations.^[56]

            Indeed in the first footnote of the case the Court stated that the defendant had been alleged to be a corporation and it was not challenged, the Court treated the defendant as a corporation and “confine[d its] analysis to the proper venue forcorporations.”^[57] This is significant for multiple reasons. First, it calls into question the lower courts’ interpretation of Daimler AG. As mentioned supra, lower courts have readily assumed that the general personal jurisdiction test applies equally to corporations and unincorporated entities because one of the defendants in that case was an LLC. However, the TC Heartland footnote indicates that the same thing happened in that Daimler AG as it did TC Heartland. That is, the status of the defendant as an LLC was not brought up and because the defendant’s treated the LLC as a corporation the court ignored doing its own analysis on the point. Second, the Court leaves the door open for litigation of the matter. It is still entirely possible that a court could take the approach that the proper venue test for LLC’s is the same as that of citizenship under a diversity jurisdiction analysis. If this is the case, the location of LLC formation is irrelevant and what matters is the citizenship of the members. This would mean venue would be proper in totally different locations as an LLC could be formed in one state and have its members be citizens of entirely different states. 

            Since this opinion, district courts have mostly held to a standard of applying the TC Heartland test to LLC’s.^[58]However, recent opinions from the District of Delaware have picked up on the issue and have written at length in footnotes about how the standard was not challenged by the LLC defendant and so the court would not opine on the matter but that the question was ripe for discussion.^[59] Indeed, those opinions seem to be doing all they can to invite the challenge.

            Although these courts in Delaware seem to be inviting a challenge, counsel is likely most safe to assume that TC Heartland applies to LLC’s the same as it does corporations. First, as highlighted, for the most part, the caselaw of the lower courts overwhelming supports an assertation that it should. Second, the fact that, since Daimler, LLC’s have been treated as corporations for the purposes of general jurisdiction analyses supports an assertion that the same should hold true for venue. One can foresee that the two tests being at odds could create complicated scenarios. Third, the Supreme Court has held that it “think[s] that the question of proper venue for [unincorporated entities,] like the question of capacity, should be determined by looking to the residence of the association itself rather than that of its individual members.”^[60] Note though, this was said in the context of analyzing 28 U.S.C. § 1391, which, as stated, was the statute TC Heartland differentiated § 1400(b) from.^[61] If the court will hold true to this general proposition for § 1400(b) as well is up for debate.

Conclusion

            It is easy to get lost in the nuances of jurisdiction and venue law. Especially in the area of patent law where field specific statutes apply. However, patent practitioners must continue to be vigilant in the familiarity with civil procedure. Understanding how jurisdiction and venue precedents interact with each other will allow counsel to not only avoid risks of transfer or dismissal, but will also allow them to make arguments on behalf of their client should they find themselves in an unfavorable court.

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* Zach Robole attended Iowa State University where he graduated magna cum laude with a degree in chemistry. Following his graduation, he decided he wanted to continue his studies with a wider field of opportunity than getting a PhD in chemistry could offer. He attended the University of Minnesota Law School in his home state. While there, he was still able to satisfy his love for science as he pursued the school’s Intellectual Property & Technology Law Concentration and received his registration number from the USPTO. While at UMN Law he also served as a Head Managing Editor with the Minnesota Law Review and had his student note published in its 107th volume. After graduating magna cum laude and being admitted to the Minnesota State Bar he worked for a short time with the intellectual property law firm Merchant & Gould P.C. as an associate attorney. However, he decided that he wanted to begin his legal career by giving back to his country and pursued an opportunity with the United States Marine Corps as a Judge Advocate. He was commissioned as an officer in March 2023 and currently lives in Stafford, VA with his wife and son as he continues his education in the area of military operations and law.

^[1] Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

^[2] Id.

^[3] 28 U.S.C. § 1332.

^[4] Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989); Texas v. Florida, 306 U.S. 398, 424 (1939).

^[5] Williamson v. Osenton, 232 U.S. 619 (1914) (holding natural persons can have only one citizenship); 28 U.S.C. § 1332(c)(1).

^[6] 28 U.S.C. § 1332(c)(1).

^[7] Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010) (calling this the “nerve center” test).

^[8] Id.

^[9] Americold Realty Trust v. ConAgra Foods, Inc., 577 U.S. 378, 381 (2016); Carden v. Arkoma Assoc., 494 U.S. 185, 195 (1990).

^[10] 28 U.S.C. § 1331.

^[11] But see Gunn v. Minton, 568 U.S. 251 (2013) (rejecting an assertion that an allegation of malpractice by a patent attorney invokes a federal question or § 1338).

^[12] For an example of attorneys learning this the hard way, see Belleville Catering Co. v. Champaign Mkt. Place, LLC, 350 F.3d 691, 692 (7th Cir. 2003).

^[13] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (emphasis added).

^[14] Id. at 924.

^[15] E.g., Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992) (“For purposes of diversity jurisdiction, the terms ‘domicile’ and ‘citizenship’ are synonymous.”); Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954) (“With respect to the diversity jurisdiction of the federal courts, citizenship has the same meaning as domicile.”)

^[16] E.g., Competitive Golf Advantage LLC v. Elite Golf Tech., LLC, No. H-21-3091, 2022 U.S. LEXIS 121, *4-5 (S.D. Tx. Jan. 3, 2022).

^[17] Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).

^[18] Id.

^[19] Id.

^[20] Id.

^[21] E.g., Frank v. PNK (Lake Charles) L.L.C., 947 F.3d 331, 336–38 n.10 (5th Cir. 2020); Gentles v. Blue Horizon Innovations, No. 21-16420, 2023 U.S. Dist. LEXIS 172556, *8 (D.N.J. Sept. 27, 2023) (citing Third Circuit cases); Toombs v. Lowe’s Home Centers, LLC, No. GLS-22-2244, 2023 U.S. Dist. LEXIS 124231, *9 (D. Md. July 18, 2023) (citing Ferrell v. Express Check Advance of SC LLC, 591 F.3d 698, 700 (4th Cir. 2010) (“For a limited liability company, a court may exercise general jurisdiction in the limited liability company’s state of formation or its PPB.”); Howarth v. TCER, LLC, No. 20-cv-03230-PAB-KMT, 2021 U.S. Dist. LEXIS 196920, *6 (D. Colo. Oct. 13, 2021); Butler v. Adient US, LLC, No. 3:20 CV 2365, 2021 U.S. Dist. LEXIS 126886, *4 (N.D. Ohio July 8, 2021); Talbot’s Pharms. Family Prods. v. Skanda Group Indus., No. 3:20-0716, 2021 U.S. Dist. LEXIS 92681, *7 (W.D. La. Apr. 28, 2021) (citing cases); Werner v. Media, No. CV 20-4240-RSWL-JEMx, 2021 U.S. Dist. LEXIS 235341, *7 n.2 (C.D. Cal. Jan. 8, 2021); Jean-Louis v. Carrington Mortg. Servs., No. 19-CV-04302, 2020 U.S. Dist. LEXIS 37586, at *7 n.6 (E.D.N.Y. Mar. 4, 2020).

^[22] E.g., Talbot’s Pharms., 2021 U.S. Dist. LEXIS 92681 at *7.

^[23] Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).

^[24] Daimler AG, 571 U.S. at 125.

^[25] Id.

^[26] Id. at 126.

^[27] Id. at 128.

^[28] J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011); Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102 (1987).

^[29] Asahi, 480 U.S. 102.

^[30] Id. at 117 (“As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.”).

^[31] Id.

^[32] Id. at 112 (“The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.”)

^[33] McIntyre, 564 U.S. 873 (2011); see also AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1363 (Fed. Cir. 2012) (“The narrowest holding is that which can be distilled from Justice Breyer’s concurrence—that the law remains the same after McIntyre.”).

^[34] McIntyre, 564 U.S. at 880-81.

^[35] Polar Electro Oy v. Suunto Oy, 829 F.3d 1343, 1349-50. (Fed. Cir. 2016).

^[36] Id. at 1350 (“[Defendant] purposefully shipped at least ninety-four accused products to Delaware retailers, fully expecting that its products would then be sold in Delaware as a result of its activities.”).

^[37] Viam Corp. v. Iowa Export-Import Trading Co., 84 F.3d 424 (Fed. Cir. 1996) (finding defendant was aware of Iowa distributor’s marketing and sales in California conferred jurisdiction in California); Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994) (finding jurisdiction in Virginia over Chinese defendant that had a New Jersey distributor with a chain of distribution to Virginia).

^[38] Celgard, LLC v. SK Innovation Co., 792 F.3d 1373, 1380 (Fed. Cir. 2015) (rejecting jurisdiction over SKI where SKI had a joint venture agreement with Kia whose distributors marketed in North Carolina).

^[39] AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358 (Fed. Cir. 2012) (rejecting a finding of jurisdiction in Wyoming where plaintiff had merely alleged defendant sold the product to parties who then happened to sell the product in Wyoming).

^[40] 871 F.3d 1355 (Fed. Cir. 2017).

^[41] Id. at 1360.

^[42] Id.

^[43] Id. at 1362.

^[44] Id.

^[45] Id.

^[46] Id.

^[47] Id. at 1363.

^[48] Id.

^[49] Id. The court has further expounded on these prongs finding that agency principals can be used to evaluate that a place was in control of defendant. In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020). But it later solidified its dicta in In re Cray and held that merely showing an agency relationship existed was not enough to satisfy the requirements. Andra Grp., LP v. Victoria’s Secret Stores, LLC, 6 F.4th 1283 (Fed. Cir. 2021). More, case specific, guidance was offered in 2022. In re Volkswagen Grp. of Am., 28 F.4th 1203 (Fed. Cir. 2022).

^[50] Gesture Tech. Partners, LLC v. Lenovo Grp. Ltd., No. W-21-CV-00122, 2021 U.S. Dist. LEXIS 248589, *11-12 (W.D. Tx. Dec. 29, 2021) (citing cases); Guy A. Shaked Invs., Ltd. v. Ontel Prods. Corp., No. 2:19-cv-10592-AV (MAAx), 2020 U.S. Dist. LEXIS 196161, *4 (C.D. Cal. July 30, 2020); SNI Sols., Inc. v. Univar USA, Inc., No. 4:18-cv-4090, 2019 U.S. Dist. LEXIS 122258, *6 (C.D. Ill. July 23, 2019); see also Power Integrations, Inc. v. BCD Semiconductor Corp., No. 07-633-JJF-LPS, 2008 U.S. Dist. LEXIS 65698 (D. Del. Aug. 12, 2008). 

^[51] TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 581 U.S. 258 (2017).

^[52] TNR Indus. Doors, Inc. v. Perofrmax Group, LLC, No 13-13815, 2014 U.S. Dist. LEXIS 82132, *8-9 (E.D. Mich. June 17, 2014).

^[53] TC Heartland, 581 U.S. at 263.

^[54] Id.

^[55] Kraft was an LLC. Id.

^[56] Id. at 262 n.1.

^[57] Id. (emphasis added).

^[58] Inhale, Inc. v. Gravitron, No. CV 18-3883 PSG (KSx), 2018 U.S. Dist. LEXIS 227069, *6-7 (C.D. Cal. Sept. 5, 2018); Univ. of S. Fla. Rsch. Found. V. Brit Sys., No. 8-16-cv-3109-MSS-TGW, 2017 U.S. Dist. LEXIS 231269, *7 n.3 (M.D. Fla. Dec. 18, 2017); Maxchief Invs., Ltd. v. Plastic Dev. Grp., LLC, No. 3:16-cv-63, 2017 U.S. Dist. LEXIS 128432, *4 (E.D. Tenn. Aug. 14, 2017); see also Safeco, Inc. v. KLX Energy Servs., LLC, No. 2:22-v-0437-JRG-RSP, *2 (E.D. Tx. June 10, 2023); Fenton Mobility Prods., Inc. v. Pareto Aluminum Sys. LLC, No. 21-CV-1285-LJV, 2022 U.S. Dist. LEXIS 204255, *4 (W.D.N.Y. Nov. 9, 2022); ARX Fit, LLC v. Outstrip Equip., LLC, No. 1:18-CV-848-RP, 2019 U.S. Dist. LEXIS 116084, *8 (W.D. Tx. July 12, 2019); Extreme Techs., LLC v. Stabil Drill Specialties, LLC, No. 6:19-cv-00219, 2019 U.S. Dist. LEXIS 91805, *3-4 (W.D. La. May 30, 2019); Nat’l Prods. v. Arkon Res., Inc., No. C15-1984JLR, 2018 U.S. Dist. LEXIS 48563, *19 n.5 (W.D. Wash. Mar. 23, 2018).

^[59] General Sci. Corp. v. Den-Mat Holdings, LLC, No. 21-882-CFC, 2021 U.S. Dist. LEXIS 193824, *2 n.1 (D. Del. Oct. 7, 2021); Galderma Labs., Inc. v. Medinter US, LLC, No. 18-1892-CFC-CJB, 2019 U.S. Dist. LEXIS 184608, *8 n.1 (D. Del. Oct. 25, 2019); IBM v. Expedia, Inc., No. 17-1875-LPS-CJB, 2019 U.S. Dist. LEXIS 123739, *4-5 n.4 (D. Del. July 24, 2019); but see Tse v. Blockbuster, LLC, No. 4:12-CV-328, 2013 U.S. Dist. LEXIS 33234, *6 (E.D. Tx. Jan. 17, 2013).

^[60] Denver & R.G.W.R. Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 559 (1967); Nat’l Prods., 2018 U.S. Dist. LEXIS 48563, *19 n.5.

^[61] Additionally, this was prior to the amendments to § 1391 discussed in TC Heartland.