In Re: Flopam Inc. , 707 F. App'x 704 ( 2017 )

Case: 18-107 Document: 27 Page: 1 Filed: 11/27/2017
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: FLOPAM INC., CHEMTALL, INC.,
Petitioners
______________________
2018-107
______________________
On Petition for Writ of Mandamus to the United
States District Court for the Southern District of Texas in
No. 4:14-CV-02733, Judge Vanessa D. Gilmore.
______________________
ON PETITION
______________________
Before PROST, Chief Judge, MOORE and O’MALLEY, Circuit
Judges.
O’MALLEY, Circuit Judge.
ORDER
Flopam Inc. and Chemtall, Inc. petition for a writ of
mandamus directing the United States District Court for
the Southern District of Texas to dismiss this case for
improper venue or, alternatively, to transfer to the United
States District Court for the Southern District of Georgia.
Specifically, petitioners argue that the district court
clearly abused its discretion in determining that their
venue defense had been waived and that the Supreme
Court’s decision in TC Heartland LLC v. Kraft Foods
Case: 18-107 Document: 27 Page: 2 Filed: 11/27/2017
2 IN RE: FLOPAM INC.
Group Brands LLC, 137 S. Ct. 1514 (2017) did not consti-
tute an intervening change in law. Respondent BASF
Corporation opposes. Petitioners reply. The petitioners
also move to stay the district court proceedings pending
consideration of the petition.
We recently held that the Supreme Court’s decision in
TC Heartland effected a relevant change in law and, more
particularly, that failure to present the venue objection
earlier did not come within the waiver rule of Federal
Rule of Civil Procedure 12(g)(2) and (h)(1). In re Micron
Tech., Inc., No. 17-138 (Fed. Cir. Nov. 15, 2017). In light
of that decision, we deem it the proper course here for
petitioners to first move the district court for reconsidera-
tion of its order denying the motion to dismiss. We there-
fore deny the petition for a writ of mandamus. Any new
petition for mandamus from the district court’s ruling on
reconsideration will be considered on its own merits.
With respect to the motion to stay, though we deny
the motion as moot, we note that United States Court of
Appeals for the Fifth Circuit has noted that matters of
venue should take “top priority in the handling of this
case by the . . . District Court.” In re Horseshoe Entm’t,
337 F.3d 429, 433 (5th Cir. 2003).
Accordingly,
IT IS ORDERED THAT:
(1) The petition is denied.
(2) The motion to stay is denied as moot.
FOR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
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