HUANG

v.

TRIFECTA NETWORKS LLC

26 1 Because an order transferring venue does not address the merits of the case, “it is a nondispositive matter that is within the province of a magistrate judge’s authority under 28 U.S.C. 27 § 636(b)(1)(A).” Pavao v. Unifund CCR Partners, 934 F. Supp. 2d 1238, 1241 (S.D. Cal. 2013) 1 II.

BACKGROUND

1. According to his

In the Florida complaint, 18 Huang alleged that “Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)-(c) and 19 1400(b) in that Defendant [Trifecta] has its operation office to do business daily and regularly in 20 this District.” Id., ECF No. 1 ¶ 4. Huang voluntarily dismissed his case against Trifecta in Florida 21 a month later, on April 22, 2021, before Trifecta had an opportunity to respond. Id., ECF No. 9. 22 On June 21, 2021, Huang refiled his complaint in this District, revising his venue 23 allegations to read: “Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)-(c) and 24 1400(b) in that Defendant has done business on the products which are made in this District. The 25 potential witness and evidence are also in this District.” Compl. ¶ 4. Huang does not allege that 26 Trifecta is incorporated in the State of California or that it has a regular and established place of 27 business here. 1 III. LEGAL STANDARD² “The district court of a district in which is filed a case laying venue in the wrong division³ or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or⁴ division in which it could have been brought.” 28 U.S.C. § 1406(a).

The patent venue statute⁵ provides that venue is proper “in the judicial district where the defendant resides, or where the 6 defendant has committed acts of infringement and has a regular and established place of business.” 7 28 U.S.C. § 1400(b). “Whether venue is proper under § 1400(b) is an issue unique to patent law 8 and is governed by Federal Circuit law.” In re ZTE (USA) Inc., 890 F. 3d 1008, 1012 (Fed. Cir. 9 2018).

Section 1400(b) “is intended to be restrictive of venue in patent cases compared with the 10 broad general venue provision.” Id. at 1014. 11 “As applied to domestic corporations, ‘reside[nce]’ in [section] 1400(b) refers only to the 12 State of incorporation.” TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 13 1521 (2017).

When determining whether a defendant has a regular and established place of 14 business in the district, three general requirements are relevant: “(1) there must be a physical place 15 in the district; (2) it must be a regular and established place of business; and (3) it must be the 16 place of the defendant. If any statutory requirement is not satisfied, venue is improper under 17 [section] 1400(b).” In re Cray Inc., 871 F. 3d 1355, 1360 (Fed. Cir. 2017). 18 “[U]pon motion by the [d]efendant challenging venue in a patent case, the [p]laintiff bears 19 the burden of establishing proper venue.” In re ZTE (USA) Inc., 890 F. 3d at 1013. “In ruling on a 20 motion to dismiss for improper venue, the plaintiff’s allegations in the complaint need not be 21 accepted as true, and the court may consider evidence outside the pleadings.” Argueta v. Banco 22 Mexicano, S.A., 87 F. 3d 320, 324 (9th Cir. 1996).

The “trial court must draw all reasonable 23 inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non- 24 moving party.” Murphy v. Schneider Nat’l, Inc., 362 F. 3d 1133, 1138 (9th Cir. 2004). 25 IV.

DISCUSSION

26 Trifecta argues venue is improper in this District because it is neither incorporated in nor 27 has a regular and established place of business in the State of California. The Court agrees. 1 of business there. Toepke Decl. ¶¶ 3-4. This principal place of business is within the Middle² District of Florida. Likewise, Trifecta’s registered office on the Florida Department of State³ website reflects the same location in the Middle District of Florida. Stroy Decl., Ex.

1. As such,

However, he argues venue is proper here because

9 (1) Most of the devices (products) accused in the complaint were manufactured in this district (N.D. California). (2) Most of the Witness are resided in this District. (3) All the data to prove the case are stored in this District[; and] (4) This Court has experience in the patent cases related to chips 13 while the District in Florida has no experience in chips. 14 Opp’n at 1-2. Huang also argues he “prefer[s] this District Court” because it “allow[s] Pro Se 15 Plaintiff to access ECF system for filing while the District Court in middle Florida does not allow 16 pro se Plaintiff to access ECF for filing.” Id. at 4.

While these arguments might be useful in a 17 motion for a convenience transfer under 28 U.S.C. § 1404, none establish proper venue under § 18 1400(b).

Indeed, courts have found that a corporate defendant “must have more contact with [a 19 venue] than simply doing business there.” FOX Factory, Inc. v. SRAM, LLC, 2018 WL 317839, at 20 *4 (N.D. Cal. Jan. 8, 2018); Westech Aerosol Corp. v. 3M Co., 2017 WL 3387363, at *3 (W.D. 21 Wash. Aug. 7, 2017); Boston Sci. Corp. v. Cook Grp. Inc., 2017 WL 3996110, at *14 (D. Del. 22 Sept. 11, 2017).

Trifecta has no offices and no employees in California, and it does not design or 23 make any of the products it sells. Toepke Decl. ¶¶ 5-7.

Accordingly, the Court finds Huang has 24 failed to meet his burden of showing that venue is proper in this District. 25 Having concluded that venue is not proper here, the Court finds that it is in the interests of 26 justice to transfer the case, rather than dismiss it. See 28 U.S.C. § 1406(a).

Under the statute, a 27 case may be transferred to “any district or division in which it could have been brought.” Id. 1 filed his complaint. Given that Trifecta is located in and maintains its principal place of business² there, the Court agrees.³ Trifecta also requests attorney’s fees “incurred in responding to Mr. Huang’s latest⁴ || frivolous filing,” arguing “it is clear that [his] filing of this action in an improper venue is not⁵ simply a mistake that can be attributed to his pro se status or a misunderstanding of venue law.” 6 || Mot. at 8.

However, the Court has made no finding as to the merits of Huang’s allegations, and, 7 based on the arguments made in his opposition, the Court cannot say there was no 8 misunderstanding of venue law. Further, it is undisputed that Huang voluntarily dismissed his 9 || case against Trifecta in Florida before Trifecta had an opportunity to respond to his complaint. 10 || Thus, it incurred no more expense than if Huang had originally filed here.

Accordingly, the Court 11 declines to award attorney’s fees. %L Vv.

CONCLUSION

= 17 Dated: July 28, 2021 18 AY \ - Lj,

THOMAS S. HIXSON

19 United States Magistrate Judge