court mark walters for the plaintiff appellant west tech aerosol corp the defendants raised a venue objection on the day the supreme court issued its decision in the t c heartland case at that time in may have twenty seventeen a lot of uncertainty existed among the bench and bar concerning the patent venue statute there was uncertainty concerning what qualified as a regular an established place of business there was uncertainty concerning whether the defense was waived if it wasn't preserved in the answer or in a response leading prior to the t c hartmann decision there was uncertainty concerning whose burden of proof it was and whose law applied in fact th granted mandamus three separate times in the months following the t c heartland decision to clarify some of these issues in a crane was decided in september of twenty seventeen and that set forth the merits of the defense what venue must be accepted as true and whether a related issue is whether or not a pack infringement plaintiff must plead and you facts according to the possibility centers of it poem twamley that's the issue that is raised in our district court cites in rate credit reporting how is it that you don't cite or you don't reference in re crane your brief in chief maybe that was an oversight your honor i mean i do not believe that business absolutely your honor and is it that the problem below that was that the court was having with your your your complaints is that you were not providing evidence that the defendant had a district court said i don't believe this defense has been waived i believe d c heartland created a new rule he said i want the plaintiffs to plead venue as long as they can do so consistent with its rule eleven obligations we conducted a un investigation and determined that we had authority and we had the facts and law in order to allege venue but what i believe the main chief complaint from the pelleas is that we didn't allege a specific address now the reason we didn't lead to specific address your honor is because at this time when we brief this on the waiver issue there was a decoration that came in of every ply stage and we never  had an opportunity to address that with any of evidence of our own so we don't see that in or a cray applies directly to this issue because the matter was decided on the pleading and if you look at rule eight there is no requirement to allege venue at all in the complaint let alone allege venue specifically so your case was o clarity when we did amend the complaint about what exactly the regular an established place of business would be we alleged venue generally as we believe we were permitted to do under under the rules and under the authority from other circuits we s on page sixteen this is how personal jurisdiction is handled in in this court and in all other circuits it's how we decided cases from other circuits on a motion to dismiss for improper venue this is exactly how they handle the motions to dismiss under twelve b three and other circuits the plates us allegations of venue are treated as true in the complaint unless and until until they are controverted by evidence on the motion to dismiss this is a dilatory defense that is waive a ball and so it need not be pleaded at all in the complaint and we are in an unusual situation where the district court asked us to plead venue so long as we could do so consistent with our rule eleven obligations which we did now one question i think you should ask is perhaps it was hasn't really been there's been no statement or any evidence whatsoever from three m to the to the effect that they don't have a regular and established place of business in the western district of washington now but that's you know for the right of course it's our burden to prove it but that's the same in the first personal jurisdiction context it's your burden to prove personal jurisdiction but at the pleading stage the all the facts that relate to personal jurisdiction are accepted as true unless and until evidence comes forward that would show up like ability to the defense imagine a  someone asserting personal juristic a motion to dismiss for personal jurisdiction and attacking the sufficiency of the pleading that just wouldn't happen and so what the district court and what three m advocate is as a rule that is in conflict with to move forward with this case before he said i mean i think you should you should address the issue of sanctions we have an open motion for sanctions before scoring you do your honor and  understand where that comes from this is an argument that we find support from in other circuits we are dealing with a procedural issue that has not been dealt with before by this court by this court this is not a situation where we are advocating a position that is not doesn't find support in the law on the contrary this is a position that we believe this it seems to me you're pretty close to that when you say that in re craig does this is a procedural issue regarding who needs to go first to set forth their evidence and there is a very established procedure in the personal jurisdiction context where the plaintiff can allege its complaint that are taken as true when you file a motion to dismiss for lack of personal jurisdiction a twelve b two it's supported by evidence it's not done in a facial attack like you would a subject matter jurisdiction or  a decision to affirm here would it would adopt a rule that's in conflict with the other circuits on how to decide a rule twelve b three motion that is the issue that we bring here and it's not an issue that's answered in or a crate that question is not answer that is and i can see how we can disagree i mean i've been a member of this court for more than fifteen years now and have volunteered and i've never had a motion like this ever filed  that upon a motion to dismiss under the spac special patent venue provision a plaintiff not to defend that bears the burden of establishing venue in raise e t e was decided by this court before they filed their opening brief on appeal so for them to make the arguments about burden was fair game in the district court but that and clarity was resolved before they filed their appeal in this court westpac cannot shift that second beyond flouting precedent west exposition ignores the telling posture of this case g c heartland was decided and after that case was decided westpac sought leave to amend its defective complaint for the pacifically says we went to amend our a complaint quote to allege the following facts and the following facts in critical part with reported three m business were cations within to judicial district but then three  facts that they brought up they said were at these locations the reality conclusively ribeye they were not at these locations they had an opportunity that wasn't the end of the matter right the disappoint them granted them leave and issued the unusual warning you can plead th if you can do it consistent with rule eleven and come up with some locations could look that the court of ev asked you at that point and said well are you anywhere in the in the district yes and i suspect the court didn't ask that because the burden is on the plaintiff but that wasn't the end of the story the plaintiff had an opportunity because the court granted leave and so they could have said in their complaint three m is it somewhere in the district at these particular locations or the transfers of those locations somewhere else there and then three m could have come back and rebut that so for them to say they didn't have an opportunity to respond the court granted them leave to do an amended complaint with then brought a motion to dismiss and say look they said they were going to lead back supporting venue there is not a single fact supporting venue in the amended complaint it was a bait and switch they just sat three m has one or more regular an established business is parroting the statute at that point we filed another motion to dismiss so they had yet another opportunity to say look two to five fifty nine they do not articulate a single factual basis and to this day and i can tell you right now three am has done its investigation it does not have any regular established place of business in the western district of washington they have still not asserted a single fact they have the burden when you file a lawsuit in a particular disc rick you have to have a factual basis a reasonable good faith factual basis even now before this court they've had multiple opportunities a leave to motion to amend the amended complaint the response to the motion to dismiss in their opening brief in their reply brief at oral argument we still have not heard a single fact to suggest that the rian has a business location and three m does not three and cannot prove a negative on that and so we're here at a posture where three m doesn't know what else to do here the district court has given them ample opportunities and if you sent th back where they refile it even under the out of circuit cases they cite they still have to have a prima facia paced a venue but they haven't articulated a single fact and that is why three m took the unusual  move and doesn't do this lightly of filing a sanction motion not only was there in re cray which the district court saying it's my motion which they don't even cited in their opening brief which shows what are the requirements of a regular in established business not says under the general the new statute which are what those cases are about on page sixteen it place the burden on the defendant with respect to certain aspects of the venue in ray's e t e specifically says and it rejected the very arguments he's making here that it we're not going to treat it as an affirmative defense because the special nature of the special venue provision the burden is on the plaintiff just a quote from him lazy expressly disagreeing with the they had to litigate this mall to pull time in the district court the district court gave a rule eleven warning and said read your facts that show venue they haven't done it there are three m had to litigate it in a second motion to dismiss they've now had to we've now had to file an appeal brief and have an argument on an issue that's foreclosed not by one federal circuit case but by two federal circuit cases that they don't even acknowledge and then the third point your honor which supports the sinkers motion here is that as you noted this was a dismissal without prejudice instead of filing an appeal and burning this court and three on with going through this exercise yet again they simply could have refiled either in the same district if they actually developed  factual basis which we know they can't three m knows they can't because they don't have any presence a regular established place of business in that district or they could have filed somewhere like minnesota filed this exact same suit where three m is actually base opportunities they've had to allege a single fact under any of the cases supporting the new and the fact that we had a dismissal without prejudice so for for all of those reasons we didn't take it lightly but that's why the sanctions motion was filed on the merits this squarely rejects the very cases that they're citing on page sixteen of their brief rejects the affirmative defense analogy to personal jurisdiction that they raise today whether it's rejected as a speeding matter under in ray's e t e or under the history of this case whe the district court they saw to be telling the district court that they would allege facts specific facts supporting venue and then didn't do it or whether you view it as a merits determination which the district court ultimately did on venue a j a first address this issue of sanctions now this is an end run around the safe harbor provisions of ruhleben had they made this statement that they're making literally for the first time that they don't actually have a place of business in the western just of washington we would have at that time put forward our evidence they could have sent me a letter and said hey mr walters your allegation that we have a regulator an established place of business has no factual support and we would have done that district court asked us to allege consistent with a rule eleven obligations and we did that investigation and we have the information and it wasn't and here is here's the problem they filed a motion without any evidence and we oppose that and then they get a reply where they submit evidence and then we this happened when we brief the waiver issue and we move to strike that evidence because it came for the first time in reply so with the law as it was moving around at this point in time and if we would have alleged a particular address in our opposition brief to their motion or if even if we if we put it into the complaint with this moving around law they would said oh well you know this doesn't count for this reason here's a declaration if you you know as judge rayna that declaration was very carefully worded he did not see categorically in that declaration we don't have a regular and stablished place of business in the western just of washington because he could not literally the first time this is being said they had an opportunity to send me a letter under the procedures in safe harbor provisions of rule eleven and say mr walters your allegation that we have a regular and established place of business in the western to sort of washington is unfounded it's doesn't have any legal or factual basis under rule eleven you need to withdraw your complaint within twenty one days or suffer the motion that was but i knew they couldn't do that because of what we have found so we have an end issue here with how we decide the motion to dismiss for improper venue we do not have an issue about who has the burden of proof we understand we have the burden of proof now in personal jurisdiction that is challenged on a rule eleven i would have provided that at the appropriate time but we don't know about that location in a crate was decided later after we found that the day before the other correct your honor  there's there's case law saying if you file a second complaint after tsismis without prejudice and you risk a with prejudice dismissal i couldn't risk that your honor a with precious dismissal we can't take that to another jurisdiction this was our chosen forum that where we wanted to litigate we felt that the procedure wasn't correct on how this motion was decided if i refile another complaint again and i suffer a with prejudice a risk so but again your honor we don't have to skiver e r would ask for some discovery if they come back and say oh well you know actually applying in or a crate doesn't actually do this you know if the you know we have the sign up on it but it's not really our location and so i would say