United States District Court, D. Maryland, Southern Division
W. GRIMM UNITED STATES DISTRICT JUDGE
Delta T, LLC. ("Delta") seeks permanent injunctive
relief and monetary damages from Defendant Dan's Fan
City, Inc. ("Dan's") for patent infringement.
See Compl. 1, ECF No. 1. Dan's moved to dismiss
for improper venue. Fed.R.Civ.P. 12(b)(3); see
Def.'s Mot. to Dismiss, ECF No. 26. Because I find that
the Federal Circuit's restrictive interpretation of 28
U.S.C. § 1400(b) precludes a finding that Dan's has
a "regular and established place of business" in
Maryland, this Court is not a proper venue. See In re
Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). But rather
than dismiss this case, I will transfer it to an appropriate
venue. 28 U.S.C. § 1406(a). The Defendant previously
asked Delta to agree to a transfer to the District Court for
the Central District of Florida, and, because I find that
that is an appropriate venue, that is where it will be
transferred. See Pl.'s Opp'n, ECF No.27, Ex.
issue before me is whether Maryland is an improper venue.
Dan's' motion to dismiss was made pursuant to Rule
12(b)(3), under which this Court is permitted to consider
evidence outside of the pleadings and it must view the facts
in the light most favorable to the plaintiff. Aggarao v.
MOL Ship Management Co., Ltd., 675 F.3d 355, 365-66 (4th
Cir. 2012). Because the facts cited in the motion to dismiss
and opposition are more relevant to the issue of proper venue
than those in the complaint, they are what I will consider,
and I will draw all inferences in favor of Delta.
is a distributor of ceiling fans. It is incorporated,
headquartered, and has its principal place of business in the
State of Florida. See Hibbeln Dec'l ¶¶
2-3, ECF No. 26-2. To reach customers, Dan's offers its
products through its own website, 30 stores that it owns, and
9 that are independently owned, but employ the name
"Dan's Fan City" to indicate that they offer
Dan's products, as well as through the websites of Home
Depot and Amazon. Id. at ¶ 9, 10.
once owned two stores in Maryland but sold both to Fan Man of
Rockville Inc. ("Fan Man") in 1990. Id. at
¶ 11-12. Today, only one of those stores remains open,
and it is the only store in Maryland using "Dan's
Fan City" in its name. Id. at ¶ 12. That
store is known as Dan's Fan City of Rockville ("DFC
Rockville"). The relationship between Dan's and DFC
Rockville is the crux of this motion to dismiss.
Dan's CEO explains in his declaration, from 1990-2000,
the relationship between Dan's and DFC Rockville was
governed by a written Dealership Agreement. See
Hibbeln Dec'l ¶ 13, ECF No. 26-2; see also
Pl.'s Opp'n, ECF No. 27, Ex. 2 ("Dealership
Agreement"). That agreement detailed the many ways in
which Dan's had the authority to dictate the operations
of DFC Rockville, such as approval over: the physical
appearance of the store, the advertising DFC Rockville
presented, what the employees wore and how they were trained,
and store hours. Dealership Agreement ¶ 13. However,
since the expiration of the Dealership Agreement in 2000, the
only governing agreement between Dan's and DFC Rockville
is oral and has only two terms: (1) either party may
terminate the relationship upon notice to the other party
and; (2) to be able to use "Dan's Fan City" in
its store name, Fan Man's store inventory must consist of
mostly Dan's products. Hibbeln Dec'l. ¶ 14.
Dan's CEO swore in his declaration that DFC Rockville
operates independently from it because, inter alia,
DFC Rockville: owns or leases its own place of business;
makes personnel decisions; trains its employees; uses its own
Maryland issued tax identification number; determines its
hours of operation, products to stock and sell, product
pricing, store layout, inventory, advertising; has its own
customer lists (which it does not share with Dan's);
maintains its own books and records, carries its own
insurance, has its own business license, and files its own
tax returns under its own federal ID number. Hibbeln
Dec'l ¶15, As Delta points out, Dan's refers to
DFC Rockville on its website as one of its "own
44-Retail Locations," and invites customers through its
website to provide feedback about their buying experience of
any Dan's products, including those purchased at the DFC
Rockville store. See Pl.'s Opp'n, ECF No.
27, Ex. 5, 8. Lastly, Dan's directs purchasers of any of
its products to contact it directly for any warranty
questions, and to return defective products to it directly
instead of to the retail medium (store or internet) the
customer used to purchase the product. See Pl.'s
Opp'n, ECF No. 27, Ex. 10.
issue for this Court, then, is whether the relationship
between Dan's and DFC Rockville is close enough to
establish Maryland as a proper venue for this suit against
12(b)(3) of the Federal Rules of Civil Procedure authorizes
parties in a civil action to move to dismiss an action for
improper venue. "When an objection to venue has been
raised under Rule 12(b)(3), the burden lies with the
plaintiff to establish that venue is proper in the judicial
district in which the plaintiff has brought the action."
Plant Genetic Sys., N. V. v. Ciba Seeds, 933 F.Supp.
519, 526 (M.D. N.C. 1996). If the Court has not held an
evidentiary hearing, the plaintiff must make only a prima
facie showing of venue to survive the motion to dismiss.
Mitrano v. Howes, 377 F.3d 402, 405 (4th Cir. 2004).
U.S.C. § 1400(b) controls what venue is proper for
patent infringement cases. The statute provides:
Any civil action for patent infringement may be brought in
the judicial district where the defendant resides, or where
the defendant has committed acts of infringement and has a