United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
COKE MORGAN, JR., SENIOR UNITED STATES DISTRICT JUDGE.
matter came before the Court pursuant to Defendants Keysight
Technologies, Inc.'s ("Keysight's") and
Ixia's (collectively, "Defendants'") Motion
to Transfer Venue Under Section 1404(a) ("Motion to
Transfer") and Keysight's Motion to Dismiss for
Improper Venue ("Motion to Dismiss"). Docs. 23-24.
The Court heard argument on these Motions on November 14,
2017, DENIED Defendant Ixia's Motion to Transfer, and
reserved ruling on the Motion to Dismiss. After further
consideration, and for the reasons stated herein, the Court
DENIES Defendant Keysight's Motion to Dismiss, Doc. 23,
and further explains its basis for DENYING Defendant
Ixia's Motion to Transfer.
action arises from the alleged infringement of four (4) of
Plaintiffs patents: U.S. Patent No. 9, 264, 370 (the
"'370 Patent"), U.S. Patent No. 9, 137, 205
(the '"205 Patent"), U.S. Patent No. 9, 560,
077 (the "'077 Patent"), and U.S. Patent No. 9,
413, 722 (the '"722 patent"). Doc.
1("Compl.") ¶¶6, 9-15.
Centripetal is a network security company incorporated in
Delaware with its principal place of business in Herndon, VA.
Id. ¶ 1. Defendant Keysight is incorporated in
Delaware with its principal place of business in Santa Rosa,
CA. Id. ¶ 2. Defendant Ixia is incorporated in
California with its principal place of business in Calabasas,
CA, and as of April 18, 2017, is owned by Defendant Keysight.
Id. ¶ 3.
accuses the Ixia ThreatARMOR devices of infringing the
'370 Patent, accuses those devices when used with
Ixia's Application and Threat Intelligence servers, such
as Ixia's Vision One devices, of infringing the '205
Patent and the '722 Patent, and accuses either setup of
infringing the '077 Patent. Id. ¶¶
16-62. Plaintiff seeks damages; injunctive relief; enhanced
damages for willful infringement; attorneys' fees, costs,
and expenses; and pre-judgment and post-judgment interest.
Id. at 36-37.
filed its Complaint in this Court on July 20, 2017. See
Compl. The Parties filed a consent Motion for and extension
of time to respond to the Complaint, Doc. 8, which the Court
GRANTED, Doc. 12. Defendants timely filed a Motion to Dismiss
on September 5, 2017. Doc. 20. They simultaneously filed the
instant Motion to Transfer and Motion to Dismiss. See Docs.
23-24. They also filed an Answer. Doc. 29. Plaintiff
responded in opposition to the instant Motions on September
19, 2017. Doc. 32. Defendants replied on September 25, 2017.
Motion to Dismiss for Lack of Venue
Federal Rule of Civil Procedure 12(b)(3), a defendant may
move to dismiss an action where venue is improper.
Fed.R.Civ.P. 12(b)(3). In patent infringement actions, venue
is proper "in the judicial district where the defendant
resides, or where the defendant has committed acts of
infringement and has a regular and established place of
business." 28 U.S.C. § 1400(b) (2017) ("§
1400(b)"). Defendants must raise improper venue either
in a motion made before a responsive pleading or as part of
the responsive pleading, or they waive that defense.
Fed.R.Civ.P. 12(b), 12(h)(1).
considering a motion under Rule 12(b)(3), a court may examine
facts outside the complaint. See Symbology Innovations.
LLC v. Lego Sys.. Inc., ___ F.Supp.3d ___, No. 2:17cv86,
2017 WL 4324841, at *4 (E.D. Va. Sept. 28, 2017) (citing 14D
Charles A. Wright et al.. 14D Federal Practice and
Procedure § 3826 & n. 30 (4th ed.)). When a
defendant challenges the propriety of venue, plaintiff bears
the burden of proof in this Circuit. Id. at *4 &
n. 5 (observing that the issue varies by circuit and citing
Smithfield Packing Co. v. V. Suarez & Ca, 857
F.Supp.2d 581, 584 (E.D. Va. 2012); Colonna's