Orthosie Systems, LLC v. Synovia Solutions, LLC, 4:16-cv-00995

Orthosie sued Synovia for infringement of U.S. Patent No. 7,430,471; Orthosie filed amended and second amended complaints.
Synovia first appeared by filing a Rule 12(b)(6) motion to dismiss (failure to state a claim) on March 17, 2017; it did not assert improper venue then.
Court’s Order Governing Proceedings required motions to transfer to be filed at least 21 days before the Case Management Conference (due by May 19, 2017); parties jointly said they did not anticipate transfer motions.
The Supreme Court decided TC Heartland on May 22, 2017; Synovia then moved for leave to file a motion to dismiss or transfer for improper venue (filed May 23, 2017) and to amend its pending 12(b)(6) motion.
The district court treated Synovia’s failure to raise venue in its initial Rule 12 motion, its prior representations, and its missed deadline as waiver of the venue defense.
The court denied Synovia’s motions for leave to file a venue-based dismissal/transfer and for leave to amend the pending motion, finding amendment futile.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Synovia waived the improper-venue defense	Venue was proper; plaintiff relied on defendant’s earlier merits defense and representations	Synovia argued it did not waive because it raised only a 12(b)(6) motion and TC Heartland changed the law after that motion	Court held Synovia waived the defense for failing to assert it in its initial 12 motion and by conduct/delays; denial of leave to file venue motion
Whether TC Heartland created a new, unavailable defense	N/A	Synovia: TC Heartland overturned decades of Federal Circuit precedent (VE Holding), so the venue defense was not reasonably available earlier	Court held TC Heartland reaffirmed Fourco and did not create a new defense; Fourco-based venue rule was always available
Whether leave to amend should be granted to assert venue	N/A	Synovia sought leave to amend its motion to add venue objection	Court denied leave under Rule 15 as futile because the venue defense was waived and amendment would not relate back

Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (Sup. Ct. 1957) (defines corporate "residence" for § 1400(b) as state of incorporation)
TC Heartland LLC v. Kraft Food Group Brands LLC, 137 S. Ct. 1514 (Sup. Ct. 2017) (reaffirmed Fourco and limited patent-venue residence to state of incorporation)
VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990) (Federal Circuit precedent applying § 1391(c) to patent venue)
Golden v. Cox Furniture Mfg. Co., Inc., 683 F.2d 115 (5th Cir. 1982) (addressing timeliness and waiver of defenses like venue)
Forman v. Davis, 371 U.S. 178 (Sup. Ct. 1962) (standards for leave to amend pleadings)
Little v. Liquid Air Corp., 952 F.2d 841 (5th Cir. 1992) (factors for denying leave to amend)