Opinion
2018-101
11-22-2017
In re: CARBONITE, INC., Petitioner
NOTE: This order is nonprecedential. On Petition for Writ of Mandamus to the United States District Court for the Eastern District of Texas in No. 6:17-cv-00121-RWS-JDL, Judge Robert Schroeder, III.
ON PETITION
Before PROST, Chief Judge, O'MALLEY and TARANTO, Circuit Judges. O'MALLEY, Circuit Judge.
ORDER
Carbonite, Inc. petitions for a writ of mandamus directing the United States District Court for the Eastern District of Texas to dismiss this case for improper venue or, alternatively, to address Carbonite's arguments that venue is improper. Specifically, Carbonite argues that the district court clearly abused its discretion in determining that Carbonite's venue defense had been waived and that the Supreme Court's decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) did not constitute an intervening change in law. Realtime Data LLC opposes.
We recently held that the Supreme Court's decision in TC Heartland effected a relevant change in the law and, more particularly, that failure to present the venue objection earlier did not come within the waiver rule of Federal Rule of Civil Procedure 12(g)(2) and (h)(1). In re Micron Tech., Inc., No. 17-138 (Fed. Cir. Nov. 15, 2017). In light of that decision, we deem it the proper course here for Carbonite to first move the district court for reconsideration of its order denying the motion to dismiss. We therefore deny the petition for a writ of mandamus. Any new petition for mandamus from the district court's ruling on reconsideration will be considered on its own merits.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
FOR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court s31