In re: SEA RAY BOATS, INC., BRUNSWICK CORPORATION v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 1989

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: SEA RAY BOATS, INC., BRUNSWICK
CORPORATION,
Petitioners
______________________
2017-124
______________________
On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Virginia
in No. 2:15-cv-00021-HCM-LRL, Senior Judge Henry C.
Morgan Jr.
______________________
ON PETITION AND MOTION
______________________
Before N EWMAN, WALLACH , and STOLL , Circuit Judges.
Order for the court filed P ER CURIAM . Circuit Judge
N EWMAN dissents.
P ER CURIAM .
O R D E R
Sea Ray Boats, Inc. and Brunswick Corporation
(collectively, “Sea Ray”) petition for a writ of mandamus
to direct the United States District Court for the Eastern
District of Virginia to transfer to the United States Dis-
trict Court for the Eastern District of Tennessee or alter-
natively to direct the district court to stay trial
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IN RE: SEA RAY BOATS, INC. 2
proceedings and determine whether venue is proper. Sea
Ray also moves for a temporary stay of the trial pending
this court’s consideration of their petition. They state
that Cobalt Boats, LLC opposes a stay.
In January 2015, Cobalt Boats sued Sea Ray in the
United States District Court for the Eastern District of
Virginia, alleging patent infringement. Approximately
two weeks before the start of trial, Sea Ray moved to
transfer this case to the Eastern District of Tennessee,
alleging improper venue. On June 7, 2017, the district
court denied the motion, finding that Sea Ray had waived
their venue challenge. Now, on the eve of trial, Sea Ray
asks this court for mandamus relief and to stay the trial
pending this court’s review of their petition.
The remedy of mandamus is available only in “excep-
tional” situations to correct a “clear abuse of discretion or
usurpation of judicial power” by a trial court. In re
Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir. 1988). A party
seeking a writ bears the burden of proving that it has no
“adequate alternative” to obtain the same relief, Mallard
v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296,
309 (1989), and that the right to issuance of the writ is
“clear and indisputable,” Will v. Calvert Fire Ins., 437
U.S. 655, 666 (1978) (internal quotation marks omitted).
Under the circumstances, the court declines to grant
mandamus relief.
Accordingly,
I T I S O RDERED T HAT :
(1) The motion to stay is denied.
(2) The petition for writ of mandamus is denied.
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IN RE: SEA RAY BOATS, INC. 3
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
s32
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IN RE: SEA RAY BOATS, INC. 4
N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: SEA RAY BOATS, INC., BRUNSWICK
CORPORATION,
Petitioners
______________________
2017-124
______________________
On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Virginia
in No. 2:15-cv-00021-HCM-LRL, Senior Judge Henry C.
Morgan Jr.
______________________
ON PETITION AND MOTION
______________________
N EWMAN, Circuit Judge, dissenting.
I renew my dissent, reinforced by the content of the
mandamus petition filed today. As the court notes in its
denial of the request for a temporary stay of trial proceed-
ings while we determine whether venue is appropriate,
the remedy of mandamus is available only in “exception-
al” situations to correct a “clear abuse of discretion or
usurpation of judicial power” by a trial court. In re
Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir. 1988). The
exercise of the judicial review role entrusted to this court
demands time for careful consideration.
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IN RE: SEA RAY BOATS, INC. 5
When a court is confronted with a change in the law,
the judicial role is to comply with the change. There is
little doubt that the Court’s decision in TC Heartland
LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, 2017
WL 2216934 (U.S. May 22, 2017), was a change in the law
of venue, and the district court states that under Fourco
Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222
(1957), venue is proper in Virginia. The issue of proper
forum following the return to Fourco requires our resolu-
tion.
This court must ensure the Court’s decision in TC
Heartland is properly applied to the facts of this case.
Determination of the forum is appropriate before expendi-
ture of the major resources of a two-week jury trial. Here,
the district court issued its opinion on the denial of the
motion to transfer venue less than a week prior to trial,
and the defendant has requested the time needed for due
consideration of its transfer motion. It is clear that if the
trial commences next Monday as scheduled, the landscape
will have changed dramatically––without a stay, the
event will be over, and an opportunity for this court to
determine whether the district court’s decision was in
compliance with the venue requirements revived by TC
Heartland may have harsh consequences. See Olberding
v. Illinois Central, 346 U.S. 338, 340 (1953) (reversing
verdict for plaintiff after jury trial in an improper venue);
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26, 41 (1998) (“reversal with new trial is re-
quired [where] venue is precluded by the governing stat-
ute” (citing Olberding)); Leroy v. Great W. United Corp.,
443 U.S. 173, 181, 184 & n. 18 (1979) (citing Olberding
and reversing declaratory judgment for improper venue).
Of course, there are arguments on both sides, for the
Virginia court has already invested in full pretrial pro-
ceedings. However, it is at trial that the purposes and
policy of proper venue become dominant. The processes of
law are designed not for the convenience of judges, but as
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IN RE: SEA RAY BOATS, INC. 6
safeguards to litigants and warders of justice. See Leroy,
443 U.S. at 183–84 (“In most instances, the purpose of
statutorily specified venue is to protect the defendant
against the risk that a plaintiff will select an unfair or
inconvenient place of trial.”). Here, where the change of
law brings the propriety of the current venue directly into
question, this defendant is entitled to consideration of its
request. Legitimate questions have been raised; they
warrant an answer for these disputants, before, not after,
trial.
I would grant the requested stay, pending expedited
briefing and resolution of this important question. From
the court’s denial of the stay, and the denial of the peti-
tion for a writ of mandamus without a stay for due con-
sideration, prior to trial, I respectfully dissent.
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