IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

3D SCAN GUIDE LLC,

Plaintiff,

v. 

CHROME FULL ARCH GUIDED SYSTEMS 

and ROE DENTAL LABORATORY, INC.,

Defendants.

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CIVIL ACTION NO. 2:23-CV-00194-JRG

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(3) or in the 

Alternative to Transfer Pursuant to 28 U.S.C. § 1406 (the “Motion”). (Dkt. No. 7.) Plaintiff 

opposes the Motion and requests leave to conduct targeted discovery in the alternative. (Dkt. No. 

12.) For the following reasons, the Court finds that ruling on the Motion should be CARRIED

until targeted jurisdictional discovery is complete and supplemental briefing has been filed.

Plaintiff requests discovery regarding: 

(i) the details of Defendant’s training of its local agents and the extent to which 

such training is ongoing; (ii) the extent to which Defendant maintains any measure 

of control over the performance of infringing procedures as carried out by its local 

agents; (iii) the manner in which Defendant ensures compliance with its training 

protocols; (iv) the means by which Defendant carries out due diligence prior to 

accepting a local agent into its program; (v) the provision of signage or other 

marketing materials from Defendant to its local agents; (vi) the provision of 

equipment from Defendant to its local agents for their use in carrying out business 

for the benefit of Defendant; (vii) the extent to which Defendant maintains any 

inventory or equipment at the locations of its local agents; (viii) the form and 

content of invoices from local agents to Defendant; (ix) the offering and servicing 

of consumer warranties as between Defendant and its local agents; (x) the means 

by which the “Contact Lab” feature of Defendant’s website functions; and (xi) any 

agreements relating to the inclusion of local agents on Defendant’s website.

(Dkt. No. 12 at 5–6.)

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In reply, Defendants argue that that much of this discovery would be irrelevant under In re 

Volkswagen, 28 F.4th 1203 (Fed. Cir. 2022) and thus futile. (Dkt. No. 13 at 3–4 (citing Parallel 

Licensing LLC v. Arrow Elecs., Inc., 2022 U.S. Dist. LEXIS 90422, at *17 (E.D. Tex. May 19, 

2022) (denying plaintiff’s alternative request for venue discovery because “additional discovery 

would not uncover additional facts to support venue in this District”)).)

The Court finds that Plaintiff’s requested discovery would not be futile under Volkswagen,

28 F.4th 1203. There, the Federal Circuit found that the District Court abused its discretion in 

failing to dismiss the case for improper venue because there was no agency relationship between 

the named defendant and the entities operating the locations in the district. Id. at 1214. Defendants 

here assert that “training, transfer controls, inventory requirements and equipment requirements 

were all present in In re Volkswagen, yet not relevant to establishing venue.” (Dkt. No. 13 at 3.) 

Notably, Defendants do not provide a specific citation to Volkswagen when making this assertion. 

Any assertion would wrong. The Federal Circuit did not hold that any of these facts were 

irrelevant. The Federal Circuit held that certain similar facts were insufficient under the specific 

facts of that case to establish an agency relationship. See Volkswagen, 28 F.4th at 1214. These are 

not the same thing.

The Court notes that the parties take opposite positions on certain factual matters. For 

example, Plaintiff asserts that Defendant ROE Dental Laboratory (“ROE”) is a New York 

corporation. (Dkt. No. 1 at ¶¶ 2, 3.) Meanwhile Defendants assert that ROE is incorporated in 

Ohio. (Dkt. No. 7 at 3.) Further, Defendants open their reply brief with “Plaintiff 3D Scan Guide, 

LLC ... makes counterfactual arguments in support of venue ... . Under the actual facts and the 

governing law, 3D Scan’s Complaint should be dismissed for improper venue,” (Dkt. No. 13 at 1 

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(emphasis supplied).) These types of statements not only support the need for targeted venue 

discovery, they do not bode well for the future conduct of counsel in this case.

In light of the foregoing, the Court is persuaded that the parties and the Court would benefit 

from targeted venue discovery in this case. Accordingly, it is ORDERED that venue discovery 

shall be undertaken herein and completed within seventy-five (75) days of this Order. Upon 

completion of venue discovery, Defendants are ORDERED to file a supplemental brief not to 

exceed ten (10) pages explaining how the venue discovery supports its Motion, and Plaintiff is 

ORDERED to file a reply to such supplement, not to exceed ten (10) pages, within seven (7) days 

of the filing of Defendants’ supplement, explaining how the venue discovery strengthens their 

opposition. The Court hereby CARRIES the Motion until such discovery and supplemental 

briefing are complete.

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____________________________________

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE So ORDERED and SIGNED this 25th day of August, 2023.

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