Last week, Judge Nelson of the District of Minnesota decided that further briefing on venue in The Valspar Corp. et al. v. PPG Industries, Inc. was appropriate given the recent TC Heartland decision by the Supreme Court. This decision by Judge Nelson came even though the case was already well past the dispositive motion stage and quickly approaching Markman. The decision was based off of a letter written by defendant, PPG Industries, essentially asking the Judge to recognize the unique situation created by TC Heartland. In the letter, PPG stated that “[t]his is not a discretionary question as to what venue is ‘convenient’…rather, this raises a new question as to whether venue is proper in Minnesota.” PPG went on to address the Rule 12 waiver issue by citing cases stating that a defense cannot be waived “which did not exist when [a party] makes its first defensive move.”

The impact of TC Heartland and the opportunity for later-in-the-case venue challenges must be followed closely by parties in pending cases. In this case, Judge Nelson permitted further briefing on venue and went so far as to postpone Markman proceedings (originally set for September 7).

The procedural and substantive issues raised by the Supreme Court's decision will continue to play out in the coming weeks and months. There will certainly be more to follow.

The Valspar Corp., et al. v. PPG Industries, Inc., 0:16-cv-01429-SRN-SER (MNDC May 31, 2017, Order) (Nelson, USDJ)