Opinion
No. 00 C 7402
September 24, 2001
MEMORANDUM OPINION AND ORDER
Defendant early on moved to dismiss for lack of jurisdiction and improper venue. It relied, however, on the wrong statutes and did not file an affidavit. After we pointed out the defects it tried again — taking the same position, again without an affidavit. It finally came up with an affidavit with its reply brief. Plaintiff moved to strike, arguing that it was too late to change theories in and file affidavits with a reply brief. Although we did not rule on that motion, we indicated that we would be disposed to consider those materials if defendant's principal, the affiant, made himself available for a deposition. It also appeared to be undisputed that defendant had indeed infringed plaintiff's patent and that in all likelihood the case would involve only the issue of damages, whether it proceeded here or in California.
Defendant's principal was, for an extended period, in China. Arrangements were made for his deposition upon his return, which, we recall, led to further disagreements. It is our understanding that the deposition gave way to settlement discussions — and then defendant disappeared, leading to a motion by its local counsel to withdraw. Thus, almost a year after the complaint was filed for redress of what appeared to be clear acts of infringement, plaintiff has not been provided discovery, the conclusionary jurisdiction affidavit has not been tested, no settlement has been reached, and plaintiff has not been provided with relief for the infringements.
In these circumstances we deny the motion to dismiss. We will not consider a late affidavit when plaintiff has been denied the opportunity to test its veracity. The only jurisdictional statement, then, is plaintiff's allegations respecting defendant doing business and committing acts of infringement in this district. And that is enough.