Petition for Writ of Mandamus to the United States District
Court for the Eastern District of Texas in No.
2:15-cv-01554-JRG, Judge J. Rodney Gilstrap.
Lourie, Reyna, and Stoll, Circuit Judges.
LOURIE, CIRCUIT JUDGE.
Inc. ("Cray") petitions for a writ of mandamus
vacating the order of the United States District Court for
the Eastern District of Texas denying its motion to transfer
the case to the United States District Court for the Western
District of Wisconsin. See Raytheon Co. v. Cray,
Inc., No. 2:15-cv-01554-JRG, 2017 WL 2813896 (E.D. Tex.
June 29, 2017) ("Transfer Order").
Raytheon Company ("Raytheon") opposes the petition.
The district court misinterpreted the scope and effect of our
precedent in determining that Cray maintained "a regular
and established place of business" in the Eastern
District of Texas within the meaning of 28 U.S.C. §
1400(b). Accordingly, the court's decision refusing
transfer pursuant to 28 U.S.C. § 1406(a) was an abuse of
discretion. We therefore grant Cray's petition for a writ
of mandamus and direct transfer of the case.
petition arises from a patent infringement action filed by
Raytheon against Cray in the Eastern District of Texas. Cray
sells advanced supercomputers that Raytheon accuses of
infringement. Cray is a Washington corporation with its
principal place of business located there. It also maintains
facilities in Bloomington, Minnesota; Chippewa Falls,
Wisconsin; Pleasanton and San Jose, California; and Austin
and Houston, Texas.
Cray does not rent or own an office or any property in the
Eastern District of Texas, it allowed Mr. Douglas Harless and
Mr. Troy Testa to work remotely from their respective homes
in that district. Transfer Order, 2017 WL 2813896,
at *1-2 & n.1. Mr. Testa worked for Cray as a senior
territory manager while residing in the district from 2010 to
2011 before the underlying suit was filed. Id. at *1
Harless worked as a "sales executive" for
approximately seven years with associated sales of Cray
systems in excess of $345 million. Id. at *1. Mr.
Harless's responsibilities also included "new sales
and new account development in [the] Central U.S." and
"management of key accounts within the Financial,
Biomedical and Petroleum Industries." Id.
(alteration in original) (quotation marks omitted).
Cray's "Americas Sales Territories" map, an
internal document, identified Mr. Harless as a "Named
Account Manager" and his location at his Eastern
District of Texas personal home. Id. Mr. Harless
received reimbursement for his cell phone usage for business
purposes, internet fees, and mileage or "other
costs" for business travel. Id. Cray provided
Mr. Harless with "administrative support" from its
Minnesota office. Id. He provided "price
quotations" to customers, listing himself as the
"account executive" and the person who prepared the
quotation. Id. at *6. The communications also
identified his home telephone number as his
"office" telephone number with an Eastern District
of Texas area code. Id.
Harless, however, did not maintain Cray products at his home,
nor did he maintain product literature at his home because it
was available online. Id. at *9. It is undisputed
that Cray never paid Mr. Harless for the use of his home to
operate its business, or publicly advertised or otherwise
indicated that his home residence was a Cray place of
moved to transfer this suit under 28 U.S.C. § 1406(a),
which provides that "[t]he district court of a district
in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in
which it could have been brought." Cray argued that it
does not "reside" in the Eastern District of Texas
in light of the Supreme Court's decision in TC
Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct.
1514 (2017). The district court agreed that Cray does not
reside in the district. Transfer Order, 2017 WL
2813896, at *4.
further argued that venue was improper in the Eastern
District of Texas because Cray had neither committed acts of
infringement, nor maintained a regular and established place
of business within that district. The district court,
however, rejected that argument. The court found that Mr.
Harless's activities were factually similar to the
activities performed by the representatives in In re
Cordis Corp., 769 F.2d 733 (Fed. Cir. 1985), in which
this court rejected a mandamus request to reverse an order
denying transfer for improper venue. See Transfer
Order, 2017 WL 2813896, at *8-10. The court did not rely
on Mr. Testa's activities in determining that venue was
the district court found that Cordis resolved this
case, the district court then went on "[f]or the benefit
of" other litigants and counsel to set out four factors
for inquiries into what constitutes a regular and established
places of business "in the modern era, " including
physical presence, defendant's representations, benefits
received, and targeted interactions with the district.
Id. at *11-14. The court, however, "decline[d]
to expressly apply the factors . . . in this particular case;
although, [it noted that it was] satisfied that had it done
so, the result would remain the same." Id. at
petitions for a writ of mandamus directing reversal of the
district court's denial of its motion to transfer venue
and directing the district court to transfer this case to the
Western District of Wisconsin pursuant to 28 U.S.C. §
issue a writ under the All Writs Act, 28 U.S.C. §
1651(a), as "'necessary or appropriate in aid
of' our jurisdiction." Miss. Chem. Corp. v.
Swift Agric. Chems. Corp., 717 F.2d 1374, 1379 (Fed.
Cir. 1983) (quoting 28 U.S.C. § 1651(a)). Mandamus is
reserved for exceptional circumstances. Bankers Life
& Cas. Co. v. Holland, 346 U.S. 379, 382-83 (1953).
A writ of mandamus "is appropriately issued, however,
when there is 'usurpation of judicial power' or a
clear abuse of discretion." Schlagenhauf v.
Holder, 379 U.S. 104, 110 (1964) (quoting Bankers
Life, 346 U.S. at 383).
of mandamus may issue where: (1) the petitioner has "no
other adequate means to attain the relief he desires";
(2) the petitioner shows "his right to mandamus is
'clear and indisputable'"; and (3) the issuing
court is "satisfied that the writ is appropriate under
the circumstances." In re TC Heartland LLC, 821
F.3d 1338, 1341 (Fed. Cir. 2016) (quoting Cheney v. U.S.
Dist. Court for the Dist. of Columbia, 542 U.S. 367,
380-81 (2004)), rev'd and remanded sub nom., on other
grounds, TC Heartland LLC v. Kraft Foods Grp. Brands
LLC, 137 S.Ct. 1514 (2017). Similarly, mandamus may be
appropriate, as it is here, to decide issues "important
to 'proper judicial administration.'" In re
BP Lubricants USA Inc., 637 F.3d 1307, 1313 (Fed. Cir.
2011) (quoting LaBuy v. Howes Leather Co., 352 U.S.
249, 259-60 (1957)). Additionally, the Supreme Court has
approved the use of mandamus to decide a "basic [and]
undecided" legal question when the trial court abused
its discretion by applying incorrect law.
Schlagenhauf, 379 U.S. at 110.
the circumstance here: the district court misunderstood the
scope and effect of our decision in Cordis, and its
misplaced reliance on that precedent led the court to deny
the motion to ...