[00:00:13] Speaker 02: Next case is West Tech Aerosol Corporation versus 3M Company, 2018-1699. [00:00:20] Speaker 02: Mr. Walters, I guess your second plane flew. [00:00:26] Speaker 01: That's correct, Your Honor. [00:00:28] Speaker 01: May it please the court, Mark Walters for the plaintiff appellant, West Tech Aerosol Corporation. [00:00:34] Speaker 01: The defendants raised a venue objection on the day the Supreme Court issued its decision in the T.C. [00:00:41] Speaker 01: Heartland case. [00:00:43] Speaker 01: At that time, in May of 2017, a lot of uncertainty existed among the bench and bar concerning the patent venue statute. [00:00:51] Speaker 01: There was uncertainty concerning what qualified as a regular and established place of business. [00:00:57] Speaker 01: There was uncertainty concerning whether the defense was waived if it wasn't preserved in the answer or in a responsive pleading prior to the TC Heartland decision. [00:01:06] Speaker 01: There was uncertainty concerning whose burden of proof it was and whose law applied. [00:01:12] Speaker 01: In fact, this court granted mandamus three separate times in the months following the TC Heartland decision to clarify some of these issues. [00:01:20] Speaker 01: In Ray Cray was decided in September of 2017, and that set forth the merits of the defense, what qualifies as a regular in the service. [00:01:29] Speaker 03: Cray was decided before you filed your brief in chief? [00:01:34] Speaker 01: Actually, Your Honor, I can't remember if it was filed. [00:01:38] Speaker 01: It certainly was not decided when we amended our complaint. [00:01:42] Speaker 01: I do not remember whether it was decided. [00:01:44] Speaker 03: OK. [00:01:45] Speaker 03: When you followed your brief in chief on appeal, was Craig decided at that point? [00:01:51] Speaker 01: It may have been decided at that point, Your Honor. [00:01:55] Speaker 03: How can you not know if this is a case that bears directly on your appeal? [00:02:00] Speaker 01: Well, Your Honor, I don't see that this bears directly on our appeal. [00:02:04] Speaker 01: The particular issue that is raised in our appeal is whether a patent infringement plaintiff [00:02:11] Speaker 01: their allegations of venue must be accepted as true and a related issue is whether or not a patent infringement plaintiff must plead venue facts according to the plausibility standards of Iqbal and Twombly. [00:02:24] Speaker 01: That's the issue that is raised in our appeal. [00:02:27] Speaker 01: That particular issue is not raised in In rey Cray. [00:02:31] Speaker 03: So you think In rey Cray has no application to this appeal? [00:02:36] Speaker 01: I think In rey Cray [00:02:38] Speaker 01: that sets forth the merits of the defense, but in this particular case, the district court never got to the merits of 3M's defense for improper venue. [00:02:47] Speaker 03: The district court did cite in Ray Cray in this decision. [00:02:50] Speaker 01: It did? [00:02:51] Speaker 01: Yes. [00:02:52] Speaker 01: But it didn't reach the merits of the defense because it decided the issue based on the sufficiency of the pleadings. [00:03:00] Speaker 03: And the question I have, if the court relied on in Ray Cray, just to take this as a singular example of problems [00:03:08] Speaker 03: In the case, if the district court cites NRA Cray as authority, how is it that you don't cite or you don't reference NRA Cray in your brief in chief? [00:03:22] Speaker 01: Maybe that was an oversight, your honor. [00:03:23] Speaker 01: I mean, I do not believe that NRA Cray is applicable to our appeal. [00:03:26] Speaker 01: That's the main reason it wasn't cited in our brief. [00:03:30] Speaker 01: Is it applicable to the issue of venue? [00:03:33] Speaker 01: Absolutely, to the merits stage. [00:03:36] Speaker 01: We didn't get to the merits of the... Does it address the question of a regular and established place of business? [00:03:43] Speaker 01: Absolutely, Your Honor. [00:03:44] Speaker 03: And isn't that the problem below that the court was having with your complaints, is that you are not providing evidence that the defendant had a regular and established place of business? [00:03:59] Speaker 01: But, Your Honor, what happened below was [00:04:02] Speaker 01: We briefed the issue of waiver and that again, this is we're in amid all of this uncertainty at this time. [00:04:09] Speaker 01: And after the district court said, I don't believe this defense has been waived. [00:04:14] Speaker 01: I believe TC Heartland created a new rule. [00:04:18] Speaker 01: He said, I want the plaintiff to plead venue as long as it can do so consistent with its rule 11 obligations. [00:04:26] Speaker 01: We conducted a, an investigation. [00:04:29] Speaker 01: and determined that we had authority and we had facts and law in order to allege venue. [00:04:35] Speaker 01: But what I believe the main chief complaint from the appellees is that we didn't allege a specific address. [00:04:43] Speaker 01: Now, the reason we didn't allege a specific address, Your Honor, is because at this time, when we briefed this on the waiver issue, there was a declaration that came in on the reply stage. [00:04:55] Speaker 01: And we never had an opportunity to address that. [00:04:59] Speaker 01: with any of evidence of our own. [00:05:00] Speaker 01: So we don't see that Inray Cray applies directly to this issue because the matter was decided on the pleadings. [00:05:11] Speaker 01: And if you look at Rule 8, there is no requirement to allege venue at all in the complaint, let alone allege venue specifically. [00:05:24] Speaker 03: So your case was dismissed without prejudice, correct? [00:05:28] Speaker 01: That's correct. [00:05:29] Speaker 03: Why didn't you refile and allege the facts that the court said you failed to allege? [00:05:38] Speaker 01: Your Honor, I believe that if we would have done that, that would have been our second attempt to amend the complaint. [00:05:46] Speaker 01: And we, at that point, may have risked dismissal with prejudice. [00:05:49] Speaker 01: And so I believed it was too risky at that point to refile. [00:05:53] Speaker 03: Or the other alternative is you could have refiled [00:05:58] Speaker 03: inserted all the facts and evidence as to the venue issue. [00:06:04] Speaker 01: Yes, Your Honor, but at this point, we have no clarity when we did amend the complaint about what exactly the regular and established place of business would be. [00:06:15] Speaker 01: We alleged venue generally as we believe we were permitted to do under the rules and under the authority from other circuits. [00:06:23] Speaker 01: We cite that in our brief on page 16. [00:06:25] Speaker 01: This is how personal jurisdiction is handled. [00:06:28] Speaker 01: in this court and in all other circuits. [00:06:31] Speaker 01: It's how we cited cases from other circuits on motions to dismiss for improper venue. [00:06:37] Speaker 01: This is exactly how they handle the motions to dismiss under 12b3 and other circuits. [00:06:44] Speaker 01: The plaintiff's allegations of venue are treated as true in the complaint unless and until they are controverted by evidence on the motion to dismiss. [00:06:54] Speaker 01: This is a dilatory defense that is [00:06:57] Speaker 01: waivable 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 11 obligations which we did. [00:07:11] Speaker 01: Now one question I think you should ask is perhaps, which hasn't really been, there's been no statement or any evidence whatsoever from 3M to the effect that they don't have a regular and established place of business in the Western District of Washington. [00:07:27] Speaker 01: Now [00:07:27] Speaker 01: But that's your burden, right? [00:07:30] Speaker 01: Of course it's our burden to prove it, but that's the same in the personal jurisdiction context. [00:07:35] Speaker 01: It's your burden to prove personal jurisdiction, but at the pleading stage, all the facts that relate to personal jurisdiction are accepted as true unless and until evidence comes forward that would show applicability to the defense. [00:07:49] Speaker 01: Imagine a [00:07:52] Speaker 01: someone asserting a motion to dismiss for personal jurisdiction and attacking the sufficiency of the pleading, that just wouldn't happen. [00:08:00] Speaker 01: And so what the district court and what 3M advocate is a rule that is in conflict with that procedure that is very well known in challenging personal jurisdiction. [00:08:12] Speaker 01: The same procedure ought to apply to venue, and it does apply in the other circuits. [00:08:17] Speaker 01: We sign on page 16 of our brief. [00:08:21] Speaker 01: So Your Honor, we ask that the case be remanded with instructions so that we can have an opportunity to discover more facts and to move forward with this case. [00:08:41] Speaker 03: Before you sit down, I mean, I think you should address the issue of sanctions. [00:08:47] Speaker 03: We have an open motion for sanctions before, is correct? [00:08:50] Speaker 01: You do, Your Honor. [00:08:51] Speaker 01: I don't understand where that comes from. [00:08:54] Speaker 01: This is an argument that we find support from in other circuits. [00:08:59] Speaker 01: We are dealing with a procedural issue that has not been dealt with before by this court. [00:09:08] Speaker 01: This is not a situation where we are advocating a position that doesn't find support in the law. [00:09:16] Speaker 01: On the contrary, this is a position [00:09:18] Speaker 01: that we believe is... It seems to me you're pretty close to that. [00:09:21] Speaker 03: When you say that in Ray Cray does not apply to the issue here. [00:09:25] Speaker 03: I mean, it's just... I think that's incorrect. [00:09:29] Speaker 01: Well, Your Honor, in Ray Cray set forth what the merits of the defense are. [00:09:33] Speaker 01: It did not set forth how a district court ought to decide the motion. [00:09:38] Speaker 01: This is a procedural issue regarding who needs to go first to set forth their evidence. [00:09:45] Speaker 01: And there is a very established procedure in the personal jurisdiction context where the plaintiff can allege facts in its complaint that are taken as true. [00:09:55] Speaker 01: When you file a motion to dismiss for lack of personal jurisdiction under 12b2, it's supported by evidence. [00:10:02] Speaker 01: It's not done in a facial attack like you would a subject matter jurisdiction or like you would a 12b6 motion. [00:10:10] Speaker 01: that would attack the sufficiency of the details in the pleading under an Iqbal or Twombly. [00:10:16] Speaker 01: That sort of procedure ought to apply, and it does apply in other circuits. [00:10:20] Speaker 01: So a decision to affirm here would adopt a rule that's in conflict with the other circuits on how to decide a rule 12b3 motion. [00:10:30] Speaker 01: That is the issue that we bring here, and it's not an issue that's answered in In rey Cray. [00:10:35] Speaker 01: That question is not answered in In rey Cray, Your Honor. [00:10:41] Speaker 01: I can see how we can disagree. [00:10:42] Speaker 01: I mean, I've been a member of this court for more than 15 years now, and I've volunteered, and I've never had a motion like this ever filed. [00:10:49] Speaker 01: It comes out of nowhere, actually, in my view. [00:10:57] Speaker 01: So it's not, I mean, I can see how you might disagree with our position, but to call that sanctions is really sort of something that I [00:11:11] Speaker 01: can't see any support for. [00:11:14] Speaker 02: Thank you, counsel. [00:11:16] Speaker 02: We'll save the remainder of your time for a bottle if you need it. [00:11:19] Speaker 02: Mr. Shah. [00:11:35] Speaker 02: Please proceed. [00:11:36] Speaker 00: May it please the court, Pratik Shah for Appellees 3M and North Star Chemical. [00:11:40] Speaker 00: Westec asserts that 3M was required to prove a negative when it filed its motion to dismiss for improper venue. [00:11:47] Speaker 00: That is, to produce affirmative evidence, controverting the existence of any unspecified, regular and established place of business in the district. [00:11:56] Speaker 00: That position suffers from two fatal flaws. [00:11:59] Speaker 00: First, it would turn this court's precedent on its head. [00:12:03] Speaker 00: In Ray ZTE holds squarely that upon a motion to dismiss, [00:12:08] Speaker 00: Under the special patent venue provision, a plaintiff, not the defendant, bears the burden of establishing venue. [00:12:17] Speaker 00: In Ray ZTE was decided by this court before they filed their opening brief on appeal. [00:12:23] Speaker 00: So for them to make the arguments about burden was fair game in the district court, but that unclarity was resolved before they filed their appeal in this court. [00:12:33] Speaker 00: Westec cannot shift that burden, which this court has conclusively placed on plaintiff, to 3M, particularly with a bare assertion of venue that lacks any supporting allegations under in Ray Cray that 3M could controvert. [00:12:50] Speaker 00: Second, beyond flouting precedent, Westec's position ignores the telling posture of this case. [00:12:57] Speaker 00: TC Heartland was decided, and after that case was decided, [00:13:00] Speaker 00: Westex sought leave to amend its defective complaint for the express purpose of alleging facts supporting venue. [00:13:09] Speaker 00: And this is at JA 453. [00:13:11] Speaker 00: It tells the district court, we want to amend our complaint to allege facts supporting venue under 1400 B. And it specifically says we want to amend our complaint, quote, to allege the following facts. [00:13:25] Speaker 00: And the following facts, in critical part, [00:13:29] Speaker 00: were three purported 3M business locations within the judicial district. [00:13:34] Speaker 00: But then 3M submitted a declaration expressly rebutting those allegations and showing that there are no 3M operations at those locations. [00:13:43] Speaker 00: Then West Tech switched tasks. [00:13:45] Speaker 03: Is my recollection correct that that declaration, it doesn't say we've never been there. [00:13:52] Speaker 03: I kind of hint that we're not there now. [00:13:54] Speaker 00: That's right. [00:13:55] Speaker 00: And nor were we there at the time the complaint was filed, which is the test of course for venue. [00:14:00] Speaker 03: At that point, in understanding that the venue burden isn't yours. [00:14:04] Speaker 03: Correct. [00:14:04] Speaker 03: But at that point, why shouldn't the court expect to say, well, we were there. [00:14:10] Speaker 03: They're correct. [00:14:11] Speaker 03: And we were in those locations, but we're not there now. [00:14:17] Speaker 03: We're here. [00:14:19] Speaker 03: Well, we're not. [00:14:22] Speaker 03: on that street anymore, you know, we're on this street. [00:14:27] Speaker 03: Why not say we're on this street? [00:14:30] Speaker 00: Sure, Your Honor. [00:14:30] Speaker 00: Well, as you said, first of all, it's not our burden. [00:14:33] Speaker 00: We can only controvert the facts that they brought up. [00:14:36] Speaker 00: They said, we're at these locations. [00:14:38] Speaker 00: 3M conclusively rebutted, we're not at these locations. [00:14:41] Speaker 00: They had an opportunity. [00:14:43] Speaker 00: That wasn't the end of the matter, right? [00:14:45] Speaker 00: The district court then granted them leave and issued the unusual warning. [00:14:48] Speaker 00: You can plead this if you can do it consistent with rule 11 and come up with some location. [00:14:53] Speaker 03: Couldn't the court have asked you at that point and said, well, are you anywhere in the district? [00:14:59] Speaker 00: Yes. [00:14:59] Speaker 00: 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. [00:15:05] Speaker 00: The plaintiff had an opportunity because the court granted leave. [00:15:08] Speaker 00: And so they could have said in their complaint, 3M is somewhere in the district at these particular locations or the transfers of those locations. [00:15:17] Speaker 00: somewhere else there. [00:15:18] Speaker 00: And then 3M could have come back and rebut that. [00:15:21] Speaker 00: So for them to say they didn't have an opportunity to respond, the court granted them leave to do an amended complaint. [00:15:28] Speaker 00: We then brought in a motion to dismiss and say, look, they said they were going to allege facts supporting venue. [00:15:33] Speaker 00: There is not a single fact supporting venue in the amended complaint. [00:15:37] Speaker 00: It was a bait and switch. [00:15:38] Speaker 00: They just said 3M has one or more regular and established businesses parroting the statute. [00:15:43] Speaker 00: At that point, we filed another motion to dismiss. [00:15:46] Speaker 00: So they had yet another opportunity to say, look, here's our investigation. [00:15:51] Speaker 00: Here's at least our facts. [00:15:52] Speaker 00: Give us an evidentiary hearing so that we can hash this out. [00:15:55] Speaker 00: They did none of that. [00:15:56] Speaker 00: You can look at their response to the motion to dismiss. [00:15:59] Speaker 00: It's in the JA in full. [00:16:00] Speaker 00: It starts at pages JA 552 to 559. [00:16:05] Speaker 00: They do not articulate a single factual basis. [00:16:08] Speaker 00: And to this day, and I can tell you right now, 3M has done its investigation. [00:16:13] Speaker 00: It does not have any regular and established place of business in the Western District of Washington. [00:16:18] Speaker 00: They have still not asserted a single fact. [00:16:21] Speaker 00: They have the burden, when you file a lawsuit in a particular district, you have to have a factual basis, a reasonable good faith factual basis. [00:16:30] Speaker 00: Even now, before this court, they've had multiple opportunities, the 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, [00:16:42] Speaker 00: We still have not heard a single fact to suggest that 3M has a business location, and 3M does not. [00:16:50] Speaker 00: 3M cannot prove a negative on that. [00:16:53] Speaker 00: And so we're here at a posture where 3M doesn't know what else to do here. [00:16:59] Speaker 00: The district court has given them ample opportunities. [00:17:02] Speaker 00: And if you sent this back, where they refiled, even under the out of circuit cases they cite, they still have to have a prima facie case, a venue, but they haven't articulated [00:17:12] Speaker 00: a single fact. [00:17:14] Speaker 00: And that is why 3M took the unusual move, and doesn't do this lightly, of filing a sanctioned motion. [00:17:21] Speaker 00: Not only was there in Ray Cray, which the district court cited in its motion, which they don't even cite in their opening brief, which shows what are the requirements of a regular and established business. [00:17:32] Speaker 00: Not a single fact that would get you close to that burden in their complaint. [00:17:36] Speaker 00: But in Ray ZTE was decided before they [00:17:40] Speaker 00: file their opening brief. [00:17:41] Speaker 00: That disagreed with the cases that they cited on page 16. [00:17:45] Speaker 00: He cites the out-of-circuit cases. [00:17:47] Speaker 00: What Inray ZTE says under the general venue statute, which are what those cases are about on page 16, it placed the burden on the defendant with respect to certain aspects of the venue. [00:17:57] Speaker 00: Inray ZTE specifically says, and it rejected the very arguments he's making here, that we're not going to treat it as an affirmative defense because the special nature of the special venue [00:18:09] Speaker 00: provision, the burden is on the plaintiff. [00:18:11] Speaker 00: Just a quote from In Re ZTE expressly disagreeing with the general venue provision. [00:18:18] Speaker 00: The cases they rely on are out of circuit cases about the general venue provision that ZTE rejects. [00:18:25] Speaker 00: They make in their brief an argument. [00:18:27] Speaker 00: It should be treated as an affirmative defense. [00:18:29] Speaker 00: In Re ZTE expressly rejects that precise argument. [00:18:34] Speaker 00: The plaintiff there made the precise argument. [00:18:36] Speaker 00: They rejected it at 1014. [00:18:38] Speaker 00: It says, we hold that as a matter of law upon motion by the defendant challenging venue in a patent case, the plaintiff bears the burden of establishing proper venue. [00:18:47] Speaker 00: That's at 1013. [00:18:49] Speaker 00: At 1014, they expressly reject that the analogy to affirmative defense as a personal jurisdiction, the very arguments he's making here. [00:18:59] Speaker 00: So 3M didn't bring this sanctions motion lightly. [00:19:02] Speaker 00: They have had to litigate this multiple times in the district court. [00:19:06] Speaker 00: The district court gave a rule 11 warning and said, plead your facts that show venue. [00:19:11] Speaker 00: They haven't done it there. [00:19:12] Speaker 00: 3M had to litigate it in a second motion to dismiss. [00:19:16] Speaker 00: We've now had to file an appeal brief and have an argument on an issue that is foreclosed not by one Federal Circuit case, but by two Federal Circuit cases that they don't even acknowledge. [00:19:26] Speaker 00: And then the third point, Your Honor, which supports the sanctions motion here, [00:19:31] Speaker 00: is that, as you noted, this was a dismissal without prejudice. [00:19:35] Speaker 00: Instead of filing an appeal and burning this court and 3M with going through this exercise yet again, they simply could have refiled either in the same district if they actually developed a factual basis, which we know they can't. [00:19:49] Speaker 00: 3M knows they can't because they don't have any presence, a regular established place of business in that district. [00:19:56] Speaker 00: Or they could have filed somewhere like Minnesota, filed this exact same suit where 3M is actually based. [00:20:02] Speaker 00: Instead of doing any of those things or articulating what this untold factual basis is, they've instead brought an appeal, which again is foreclosed by precedent and foreclosed by the multiple opportunities they've had to allege a single fact under any of the cases supporting venue and the fact that we had a dismissal without prejudice. [00:20:25] Speaker 00: So for all of those reasons, we didn't take it lightly, but that's why the sanctions motion was filed on the merits. [00:20:31] Speaker 00: This is not, we don't believe this is even a close call under NRA Cray or NRA ZTE. [00:20:37] Speaker 00: And when you combine it, whether you look at this as a pleading case in which NRA ZTE controls because it places the burden expressly and squarely rejects the very cases that they're citing on page 16 of their brief. [00:20:51] Speaker 00: rejects the affirmative defense analogy to personal jurisdiction that they've raised today, whether it's rejected as a pleading matter under in Ray ZTE or under the history of this case where the district court, they sought leave 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. [00:21:15] Speaker 00: At JA3, after citing in Ray Cray, it says, quote, there is no factual basis [00:21:21] Speaker 00: upon which the court can conclude that 3M has a regular and established place of business in this district, venue is improper here. [00:21:29] Speaker 00: So whether you view this as pleading or an actual determination on venue, it is foreclosed by this court's precedent. [00:21:37] Speaker 00: If there are no further questions, I'm happy to rest with. [00:21:40] Speaker 02: Thank you, counsel. [00:21:41] Speaker 02: Mr. Walters has a little rebuttal time. [00:21:45] Speaker 01: Let me first address this issue of sanctions. [00:21:49] Speaker 01: Now, this is an end run around the safe harbor provisions of Rule 11. [00:21:53] Speaker 01: 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 District of Washington, we would have at that time put forward our evidence. [00:22:04] Speaker 01: They could have sent me a letter and said, hey, Mr. Walters, your allegation that we have a regular and established place of business has no factual support. [00:22:11] Speaker 01: And we would have done that. [00:22:13] Speaker 01: The district court asked us [00:22:15] Speaker 01: to alleged consistent with our rule 11 obligations and we did that investigation and we have the information and it wasn't and here's the problem. [00:22:25] Speaker 01: They filed a motion without any evidence and we oppose that and then they get a reply where they submit evidence and then this happened when we briefed the waiver issue and we moved to strike that evidence because it came for the first time in reply. [00:22:43] Speaker 01: With the law as it was moving around at this point in time, if we would have alleged a particular address in our opposition brief to their motion, or even if we put it into the complaint, with this moving around law, they would have said, oh, well, you know, this doesn't count for this reason. [00:23:02] Speaker 01: Here's a declaration. [00:23:03] Speaker 01: You notice Judge Raina, that declaration was very carefully worded. [00:23:07] Speaker 01: He did not say categorically in that declaration, we don't have a regular and established place of business. [00:23:12] Speaker 01: in the Western District of Washington because he could not. [00:23:15] Speaker 01: This is literally the first time this is being said. [00:23:19] Speaker 01: They had an opportunity to send me a letter under the procedures and safe harbor provisions of Rule 11 and say, Mr. Walters, your allegation that we have a regular and established place of business in the Western District of Washington is unfounded. [00:23:31] Speaker 01: It doesn't have any legal or factual basis under Rule 11. [00:23:34] Speaker 01: You need to withdraw your complaint within 21 days or suffer the motion. [00:23:39] Speaker 01: That was [00:23:40] Speaker 01: But I knew they couldn't do that because of what we had found. [00:23:44] Speaker 01: So we have an issue here with how you decide a motion to dismiss for improper venue. [00:23:49] Speaker 01: We do not have an issue about who has the burden of proof. [00:23:54] Speaker 01: We understand we have the burden of proof. [00:23:57] Speaker 01: Now, in personal jurisdiction, that is absolutely... What is it that you found? [00:24:02] Speaker 01: What are you referring to? [00:24:04] Speaker 01: We have, uh, uh, we did an investigation. [00:24:06] Speaker 01: We have a picture of a 3M location in the Western District of Washington. [00:24:10] Speaker 01: That was, uh, what we found. [00:24:13] Speaker 01: And if I were challenged on a rule 11, I would have provided that at the appropriate time. [00:24:19] Speaker 01: But we don't know about that location. [00:24:23] Speaker 01: Interray Cray was decided later after we found that location. [00:24:26] Speaker 03: Did the court warn you about rule 11? [00:24:29] Speaker 01: Correct, your honor. [00:24:30] Speaker 01: That's why we did, that's why we went out and looked for other, other locations. [00:24:34] Speaker 01: And we noticed that very carefully worded declaration that says- Why didn't you follow it? [00:24:38] Speaker 03: At that time, why didn't you take measures to get it before the court? [00:24:41] Speaker 01: Because again, Your Honor, if I filed another complaint, there's a case law saying if you file a second complaint after it's dismissed without prejudice, then you risk a with prejudice dismissed. [00:24:52] Speaker 01: I couldn't risk that, Your Honor. [00:24:54] Speaker 01: A with prejudice dismissed, so we can't take to another jurisdiction. [00:24:58] Speaker 01: This was our chosen forum that where we wanted to litigate, we felt that [00:25:03] Speaker 01: Uh, the procedure wasn't correct on how this motion was decided. [00:25:07] Speaker 01: If I refile another complaint again, um, and, and I suffer a, with prejudice of risk. [00:25:15] Speaker 03: So my only choice, my only opportunity to have this venue was to, was to refile again, what would you do different if anything? [00:25:22] Speaker 01: Well, now that we have in Ray Cray, I would probably, uh, allege the facts that were, uh, within Ray Cray with respect to the location that we found. [00:25:34] Speaker 01: But again, Your Honor, we don't have discovery. [00:25:36] Speaker 01: Or I would ask for some discovery if they come back and say, oh, well, you know, actually applying NRA Cray, it doesn't actually do this. [00:25:42] Speaker 01: You know, we have the sign up on it, but it's not really our location. [00:25:47] Speaker 01: And so I would say, well, hey, I'd like to do some discovery at this point now. [00:25:51] Speaker 01: And so we can figure out if it actually is going to qualify under NRA Cray. [00:25:58] Speaker 02: Thank you, Counsel. [00:25:59] Speaker 01: OK. [00:25:59] Speaker 02: I think we have your argument. [00:26:01] Speaker 02: We'll take the case under advisement.