LOYAL-T SYSTEMS LLC v. AMERICAN EXPRESS COMPANY

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LOYAL-T SYSTEMS LLC,

Plaintiff,

Civil Action No. 23-2625 (ES) (LDW)

v.

OPINION

AMERICAN EXPRESS COMPANY and

AMERICAN EXPRESS TRAVEL

RELATED SERVICES COMPANY, INC.,

Defendants.

SALAS, DISTRICT JUDGE

Plaintiff Loyal-T Systems (“Plaintiff” or “Loyal-T”) filed this action for patent

infringement against Defendants American Express Company (“Amex Co.”) and American

Express Travel Related Services Company, Inc. (“Amex TRS”) (collectively, “Defendants”).

(D.E. No. 1 (“Complaint” or “Compl.”)). Before the Court is Defendants’ motion to dismiss for

improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), or, in the alternative, to

transfer this case to the United States District Court for the Southern District of New York pursuant

to 28 U.S.C. § 1406(a). (D.E. No. 40 (“Motion”)). Having considered the parties’ submissions,

the Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b).

For the following reasons, Defendants’ Motion is GRANTED and this matter shall be transferred

to the United States District Court for the Southern District of New York.

I. BACKGROUND

A. Factual Background

This is a patent infringement action brought by Plaintiff against Defendants concerning

patents that are directed to systems and methods for administering customer loyalty programs.

(See Compl.). According to the Complaint, “[a] customer loyalty program is a system whereby a

business offers rewards to its customers who make frequent purchases” and “is a mechanism to

promote repeat purchases and customer retention.” (Id. ¶ 17). “A single merchant loyalty program

allows customers to earn rewards through purchasing and redeeming points with the particular

merchant or service provider hosting the program.” (Id. ¶ 18). By contrast, “[c]oalition loyalty

programs are created by a single company and are then extended to a number of participating

companies.” (Id. ¶ 20). “The owner of the program is responsible for managing the program and

overseeing the loyalty point clearing and settlement process.” (Id.). Plaintiff alleges that “[t]he

main appeal of the coalition loyalty programs is that members can visit any store, earn points for

their purchases, and immediately go to another store and redeem their points.” (Id.). However,

because loyalty programs required specialized hardware to process the loyalty point clearing and

settlement process, loyalty programs were historically limited to single merchant loyalty programs.

(Id. ¶ 21). According to the Complaint, “[i]n or about 2008, Loyal-T developed a method and

process to reduce technology and cost barriers preventing many merchants from establishing,

participating in, and managing a coalition loyalty program.” (Id. ¶ 22). As alleged in the

Complaint, Plaintiff holds the rights to multiple patents that involve methods that allow merchants

to offer loyalty programs in a more cost-effective manner. (Id. ¶¶ 31–32). More specifically,

Plaintiff alleges that it is the owner of all right, title, and interest in (i) United States Patent No.

8,712,839 (the “’839 Patent”) entitled “System and Method for Managing a Loyalty Program Via

an Association Network Infrastructure”; and (ii) United States Patent No. 10,210,537 (the “’537

Patent”) entitled “System and Method for Managing a Loyalty Program via an Association

Network Infrastructure.” (Id. ¶¶ 23 & 27). According to Plaintiff, the primary purpose of the’839

Patent and the ’537 Patent is to provide methods that allow merchants to utilize an association

network to identify a customer within a loyalty program, facilitate the customer’s ability to earn

points on a purchase, and redeem points and other rewards without involving additional hardware.

(Id. ¶¶ 23, 27 & 31). Despite these patents, Plaintiff alleges that “[s]ince at least 2015, through

multiple customer loyalty programs, Defendants have unlawfully benefitted from the unauthorized

practice of methods and technology contained in Loyal-T’s patents.” (Id. ¶ 2).

According to the Complaint, Plaintiff “is a Delaware limited liability company organized

with its principal place of business at 5740 Baja Mar, La Jolla, California.” (Id. ¶ 3). Plaintiff

alleges that Defendant Amex Co. is a New York corporation with a principal place of business at

200 Vesey Street, New York, New York 10285. (Id. ¶ 5). Likewise, Plaintiff alleges that Amex

TRS is a New York corporation with a principal place of business at 200 Vesey Street, New York,

New York 10285 and is a privately held subsidiary of Amex Co. (Id. ¶ 6). According to Plaintiff,

although Defendants are New York corporations, they also do business in New Jersey and have

physical locations in New Jersey. (Id. ¶ 12). More specifically, Plaintiff alleges that based upon

publicly available information, Defendants “recently executed a 15-year lease for an 18,000-

square-foot lounge in Terminal A at Newark Liberty International Airport” and are constructing

their largest Centurion Lounge to date at that location. (Id. ¶ 9). Further, Plaintiff alleges that

based upon publicly available information, American Express Global Business Travel, which is

an agent of Defendants, has a location at 101 Hudson Street, 34th Floor, Jersey City, New Jersey

07302. (Id. ¶ 11).

B. Procedural History

Plaintiff filed this action for patent infringement against Defendants on May 15, 2023. (See

Compl.). Thereafter, on August 21, 2023, Defendants moved to dismiss Plaintiff’s Complaint for

improper venue. (See D.E. No. 18-1 (“Mov. Br.”)). Alternatively, Defendants request that this

matter be transferred to the United States District Court for the Southern District of New York.

(See id.). As an initial matter, in their moving brief, Defendants contended that venue was

improper in the United States District Court for the District of New Jersey because they do not

reside in New Jersey—that is, they are not incorporated in New Jersey. (Mov. Br. at 8). Rather

they pointed out that they are New York corporations that both maintain a principal place of

business at 200 Vesey Street, New York, New York 10285. (Id.). Further, Defendants contended

that venue was improper in the United States District Court for the District of New Jersey because

they do not maintain a regular and established place of business in New Jersey. (Id. at 8–13).

Though Plaintiff alleges that Defendants “recently executed a 15-year lease for an 18,000-square

foot lounge in Terminal A at Newark Liberty International Airport,” and further alleges that

Defendants are constructing “the New Jersey Centurion Lounge” therein, Defendants maintain

that, as of the date they filed their moving brief, they had not even executed a lease for a lounge—

or for that matter any other facility—at Newark Liberty International Airport. (Id. at 3 (citing

Compl. ¶¶ 9–10)). Further, though Plaintiff also identifies a business it calls “American Express

Global Business Travel” that purportedly has an office at 101 Hudson Street, 34th Floor, Jersey

City, New Jersey 07302, Defendants pointed out that this entity is not an American Express

company but is a separate company that has a limited license to use certain American Express

trademarks. (Id. at 4). Accordingly, Defendants contended that venue is improper in the United

States District Court for the District of New Jersey because they do not reside in New Jersey and

do not maintain a regular and established place of business in New Jersey. (Id. at 8–13).

On September 5, 2023, Plaintiff submitted an opposition. (D.E. No. 23 (“Opp. Br.”) at 2).

Though Plaintiff explained that it brought this action in good faith and believed that discovery

would establish that Defendants have a presence at Newark Liberty International Airport, it

provided “solely for the purpose of expediting the resolution of this case, [it] will not oppose

transfer to the Southern District of New York.” (Id. at 2). Thereafter, on September 6, 2023,

Defendants requested that the Court grant the joint request to transfer the case to the Southern

District of New York. (D.E. No. 24 (“Reply”) at 2). Before the Court could grant the joint request

to transfer the case to the Southern District of New York, on September 27, 2023, Plaintiff filed a

Sur-Reply. (D.E. No. 27 (“Pl. Sur-Reply”)). In the Sur-Reply, Plaintiff withdrew its consent to

transfer the case to the Southern District of New York because on September 12, 2023, news

reports announced that Defendants signed a lease for space at Newark Liberty International

Airport. (Id. at 2–4). Based on this lease, Plaintiff maintains that venue is proper in the United

States District Court for the District of New Jersey. (Id.). On October 3, 2023, Defendants filed

a response to Plaintiff’s Sur-Reply. (D.E. No. 33 (“Def. Sur-Reply”)). In that response,

Defendants maintain that even though they may have signed a lease for space at Newark Liberty

International Airport, venue is still improper in the United States District Court for the District of

New Jersey because venue is determined by the circumstances as they exist at the time the

complaint is filed. (Id. at 1–3).1 As such, they contend that a lease signed on September 12,

2023—months after the May 15, 2023 Complaint was filed and after briefing on Defendants’

motion to dismiss for improper venue was complete—is immaterial and does not change the facts

that support Defendants’ motion. (Id.).2

1 On November 29, 2023, this case was reassigned from the Honorable Kevin McNulty, U.S.D.J. to the

Undersigned. (D.E. No. 37). After the case was reassigned to the Undersigned, the Undersigned directed the

Defendants to file a new notice of motion to support their motion to dismiss for improper venue pursuant to Federal

Rule of Civil Procedure 12(b)(3), or, in the alternative, to transfer this case to the United States District Court for the

Southern District of New York. (D.E. Nos. 38 & 39). The Defendants filed the renewed notice of motion on February

5, 2024. (See Motion).

2 On July 8, 2024, Defendants submitted a notice of supplemental authority, which the Court has considered.

(See D.E. No. 43).

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(3), a district court may dismiss an action

for improper venue. Fed. R. Civ. P. 12(b)(3). Section 1400(b) of title 28 of the United States Code

“constitute[s] the exclusive provision controlling venue in patent infringement proceedings.” TC

Heartland LLC v. Kraft Foods Grp. Brands LLC, 581 U.S. 258, 265 (2017) (internal quotation

marks omitted). “Whether venue is proper under § 1400(b) is an issue unique to patent law and is

governed by Federal Circuit law,” rather than regional circuit law. In re ZTE (USA) Inc., 890 F.3d

1008, 1012 (Fed. Cir. 2018). Under Section 1400(b), venue is proper either (i) where the defendant

“resides,” or (ii) where it “has committed acts of infringement and has a regular and established

place of business.” 28 U.S.C. § 1400(b). Under the first prong, the Supreme Court has held: “As

applied to domestic corporations, ‘reside[nce]’ in § 1400(b) refers only to the State of

incorporation.” TC Heartland, 581 U.S. at 270. Under the second prong, the Federal Circuit

interpreted a “regular and established place of business” to impose three general requirements:

“(1) there must be a physical place in the district; (2) it must be a regular and established place of

business; and (3) it must be the place of the defendant.” In re Cray Inc., 871 F.3d 1355, 1360

(Fed. Cir. 2017). The Supreme Court has cautioned against a broad reading of the patent venue

statute. Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 264 (1961) (“The requirement of

venue is specific and unambiguous; it is not one of those vague principles which, in the interest of

some overriding policy, is to be given a liberal construction.” (quoting Olberding v. Ill. Cent. R.

Co., 346 U.S. 338, 340 (1953)). As such, the failure to satisfy any statutory requirement requires

a finding of improper venue. In re Cray Inc., 871 F.3d at 1360.

“[U]pon motion by the Defendant challenging venue in a patent case, the Plaintiff bears

the burden of establishing proper venue.” In re ZTE (USA) Inc., 890 F.3d at 1013; Bristol-Myers

Squibb Co. v. Aurobindo Pharma USA Inc., No. 17-0374, No. 17-0379, 2018 WL 5109836, at *1

(D. Del. Oct. 18, 2018). “[W]hen confronted with a motion to dismiss for improper venue, the

Court may consider both the complaint and evidence outside the complaint.” Bristol-Myers Squibb

Co., 2018 WL 5109836, at *2 (citing 14D Wright & Miller, Federal Practice & Procedure § 3826

(4th ed. 2017)). “The Court will accept any venue-related allegations in the complaint as true,

unless those allegations are contradicted by the defendant’s affidavits[,]” and the Court may also

consider any affidavits submitted by the plaintiff. Id.

III. DISCUSSION

A. Venue

As already discussed, 28 U.S.C. § 1400(b) provides that “[a]ny civil action for patent

infringement may be brought [i] in the judicial district where the defendant resides, or [ii] where

the defendant has committed acts of infringement and has a regular and established place of

business.” 28 U.S.C. § 1400(b). Because both Amex Co. and Amex TRS are “New York

corporation[s]” (Compl. ¶¶ 5–6), neither Amex Co. nor Amex TRS “reside[]” in New Jersey for

purposes of patent venue. TC Heartland, 581 U.S. at 262 (“[A] domestic corporation ‘resides’

only in its State of incorporation for purposes of the patent venue statute.”). Thus, to establish

venue in this case, Plaintiff must show that the Defendants committed acts of infringement and

maintain a regular and established place of business in the District of New Jersey.3

As set forth above, the Federal Circuit has interpreted a “regular and established place of

business” to impose three general requirements: “(1) there must be a physical place in the district;

(2) it must be a regular and established place of business; and (3) it must be the place of the

3 Here, Defendants do not dispute that they have committed acts of infringement within the District of New

Jersey. (See generally Mov. Br., Reply & Def. Sur-Reply). As such, the Court will focus only on whether Plaintiff

has met its burden in showing that Defendants maintain a regular and established place of business in the District of

New Jersey.

defendant.” In re Cray Inc., 871 F.3d at 1360. First, there must “be a physical, geographical

location in the district from which the business of the defendant is carried out.” In re Cray, 871

F.3d at 1362. This may be “satisfied by a branch office, sales showroom, or warehouse, a table at

a flea market, shelf in a supermarket, or even a physical data server.” Uni-Systems, LLC v. U.S.

Tennis Assoc. Nat’l Tennis Ctr. Inc., No. 17-147, 2020 WL 1694490, at *8 (E.D.N.Y. Apr. 7,

2020) (citing cases). Second, the defendant’s place of business must be “regular and established.”

In re Cray Inc., 871 F.3d at 1360. To be “regular and established,” the place of business must

operate “in a steady, uniform, orderly, and methodical manner.” Id. at 1362 (internal quotation

marks and alterations omitted). The location must be characterized by a sufficient degree of

permanence, and while a business can move locations, it must be stable for a meaningful period of

time. Id. at 1363. A “regular and established place of business” also “requires the regular, physical

presence of an employee or other agent of the defendant conducting the defendant’s business at

the alleged ‘place of business.’” In re Google LLC, 949 F.3d 1338, 1345 (Fed. Cir. 2020). Third,

the place of business must “be a place of the defendant,” meaning “the defendant must establish

or ratify the place of business.” Cray, 871 F.3d at 1362 (emphasis added). The Federal Circuit

has identified a number of relevant considerations that may assist courts in determining whether a

place of business is the place of the defendant, including whether the defendant: (a) owns or leases

the place or exercises other attributes of possession or control over the place; (b) has conditioned

employment on an employee’s continued residence in the district or the storing of materials at a

place in the district so that they can be distributed or sold from that place; (c) markets or advertises

to the extent it indicates that the defendant itself holds out a place for its business in the district;

(d) represents that it has a place of business in the district; and (e) conducts similar activity at the

place compared to the defendant’s other places of business. Id. at 1363–64. In considering the

defendant’s outward representations, courts may consider “whether the defendant lists the alleged

place of business on a website, or in a telephone or other directory; or places its name on a sign

associated with or on the building itself.” Id. That said, “the mere fact that a defendant has

advertised that it has a place of business or has even set up an office is not sufficient [to qualify as

a regular and established place of business]; the defendant must actually engage in business from

that location.” Id. at 1364.

To support its assertion that venue is proper in the District of New Jersey, Plaintiff alleges

the following facts. First, Plaintiff alleges that venue is proper in this District because, based upon

publicly available information, Defendants “recently executed a 15-year lease for an 18,000-

square-foot lounge in Terminal A at Newark Liberty International Airport” and are constructing

their largest Centurion Lounge to date at that location. (Compl. ¶ 9). Second, Plaintiff alleges that

venue is proper in this District because, based upon publicly available information, American

Express Global Business Travel, which is an agent of Defendants, has a location at 101 Hudson

Street, 34th Floor, Jersey City, New Jersey 07302. (Id. ¶ 11). The Court will consider in turn

whether either of these allegations indicates that Defendants maintain a regular and established

place of business in the District of New Jersey to support proper venue in this District.4

4 In its Complaint, Plaintiff also provides that venue is proper in the District of New Jersey because, among

other things, “Defendants are subject to personal jurisdiction in this District [and] have sued and been sued in this

District.” (Compl. ¶ 15). However, as Defendants point out (Mov. Br. at 14), such allegations are insufficient to

support venue. While personal jurisdiction considerations may be relevant to the general venue statute, 28 U.S.C. §

1391, the Supreme Court has confirmed that Section 1400(b) is the sole and exclusive provision controlling venue in

patent cases. See TC Heartland, 581 U.S. at 265–66 (holding that Section 1400(b) is “not to be supplemented” by

Section 1391); Alexsam, Inc. v. Simon Prop. Grp. (Texas), L.P., No. 19-0331, 2021 WL 8441707, at *2 (E.D. Tex.

Sept. 3, 2021) (“Alexsam also alleges that ‘[v]enue is proper in this district pursuant to 28 U.S.C. § 1391(b) because

[Amex] has, upon information and belief, a regular and established place of business in this district, which subjects it

to the personal jurisdiction of this Court.’ However, the allegation under § 1391(b) should be disregarded since TC

Heartland held that § 1400(b) is the ‘sole and exclusive provision controlling venue in patent infringement actions.’”).

i. Lease at Newark Liberty International Airport

As set forth above, Plaintiff first alleges that venue is proper in this District because, based

upon publicly available information, Defendants “recently executed a 15-year lease for an 18,000-

square-foot lounge in Terminal A at Newark Liberty International Airport” and are constructing

their largest Centurion Lounge to date at that location. (Compl. ¶ 9). In moving to dismiss for

improper venue, Defendants submitted a declaration from Anand Gadgil, the Vice President and

General Manager at Amex TRS, confirming that as of August 16, 2023, Defendants had not even

executed a lease for a lounge—or for that matter any other facility—at Newark Liberty

International Airport. (D.E. No. 18-2 (“Gadgil Decl.”) ¶ 7). Citing to a Port Authority Press

Release, Defendants clarified that while they were in the process of negotiating a lease for space

at Newark Liberty International Airport, that space—a Centurion Lounge—is not expected to open

for years. (Mov. Br. at 3–4 (citing Port Authority of NY/NY Press Release,

https://www.panynj.gov/port-authority/en/press-room/press-release-archives/2023-press-

releases/first-airport-lounge-opens-at-newark-liberty-international-airpo.html (“We are also

looking forward to the opening of . . . the American Express Centurion Lounge coming sometime

in 2025.”))). Accordingly, Defendants maintained that the lack of an actual physical location at

Newark Liberty International Airport was fatal to Plaintiff’s venue proposition. (Id. at 9).

In opposition, Plaintiff provided that multiple public statements indicate that Defendants

were scheduled to enter into a lease agreement with the Port Authority of New York and New

Jersey to operate a Centurion Lounge in Newark Liberty International Airport, with the Lounge

scheduled to open in 2023, thereby casting doubt on Defendants’ sworn statements. (Opp. Br. at

2). Plaintiff cites to the following public statements:

• “The lease will start around January 1, 2022, and will continue for

around 15 years. Payment is expected to start around August 1,

2023, or when the lounge opens.” (Opp. Br. at 3 (citing Ben

Schlappig, Amex To Open Biggest-Ever Centurion Lounge At

Newark Airport (EWR), One Mile At A Time (Updated Aug. 26,

2022), https://onemileatatime.com/news/amex-centurion-lounge-

newark/));

• “American Express will pay a total of $121.5 million over the term

of the lease, and will invest approximately $100 million to construct

the terminal expansion. The airport itself won’t have to make any

capital investments in connection to the lounge.” (Opp. Br. at 3

(citing Ben Schlappig, Amex To Open Biggest-Ever Centurion

Lounge At Newark Airport (EWR), One Mile At A Time (Updated

Aug. 26, 2022), https://onemileatatime.com/news/amex-centurion-

lounge-newark/));

• “The issuer just received approval for a 15-year lease in the airport’s

brand-new Terminal A for an 18,000-square-foot lounge, which

would make Newark its largest location to date.” (Opp. Br. at 3

(citing Zach Griff, Confirmed: Amex will open largest Centurion

Lounge in Newark Airport, The Points Guy (Sept. 30, 2021),

https://thepointsguy.com/news/amex-centurion-lounge-coming-to-

newark/));

• “Lease Duration: 15-year base term and one five-year option period

to extend” (Opp. Br. at 3–4 (citing Port Authority of New York and

New Jersey, Committee On Operations 9/30/2021, Youtube at 03:35

(Sept. 30, 2021),

https://www.youtube.com/watch?v=TDKQyolrc2U));

• “It is anticipated that the lease agreement between the Port Authority

and AMEX will be executed later this year.” (Opp. Br. at 4 (Port

Authority of New York and New Jersey, Committee On Operations

9/30/2021, Youtube at 04:20 (Sept. 30, 2021),

https://www.youtube.com/watch?v=TDKQyolrc2U)); and

• Stating that under the approved terms, “the lease would commence

on or about January 1, 2022 and continue for 15-years after the

commencement of rent payments to the Port Authority.” (Opp. Br.

at 4 (citing Minutes, Port Authority of New York & New Jersey at

65–66 (Sept. 30, 2021),

https://www.panynj.gov/corporate/en/board-meeting-info/board

minutes-contractauthorizations.html.)).

(Opp. Br. at 3–4). Plaintiff contended that these public statements at minimum entitled it to venue

discovery concerning the Lounge’s status. (Id. at 4). Notwithstanding the above, however, and

solely to facilitate the forward progress of this case, Plaintiff stated that it would not seek to

disprove the statements in the sworn declaration submitted to this Court by Defendants indicating

that they had yet to execute a lease at Newark Liberty International Airport and thus would not

oppose transfer to the Southern District of New York. (Id. at 2 & 4).

As explained above, before the Court could grant the joint request to transfer the case to

the Southern District of New York, on September 27, 2023, Plaintiff filed a Sur-Reply. (Pl. Sur-

Reply). In the Sur-Reply, Plaintiff withdrew its consent to transfer the case to the Southern District

of New York because on September 12, 2023, news reports announced that Defendants signed a

lease for space at Newark Liberty International Airport. (Id.). In their Sur-Reply, Plaintiff cites

to the following public statements from September 12, 2023, evidencing that a lease had been

signed:

• “Today, American Express and the Port Authority of New York &

New Jersey announced plans to expand the Centurion Lounge

Network with its first ever location at Newark Liberty International

Airport (EWR).” (Pl. Sur-Reply at 2–3 (citing American Express

and The Port Authority of New York & New Jersey Announce Plans

for New Centurion Lounge at Newark Liberty International Airport,

American Express (Sept. 12, 2023),

https://about.americanexpress.com/newsroom/press-releases/news-

details/2023/American-Express-and-The-Port-Authority-of-New-

York--New-Jersey-Announce-Plans-for-New-Centurion-Lounge-

at-Newark-Liberty-International-Airport/default.aspx.));

• “A spokesperson told Travel + Leisure that while a 2021 proposal

document had shown an opening date of 2023, Amex just signed a

lease for the Newark lounge this month. Therefore, it isn’t expected

to be ready for several years.” (Pl. Sur-Reply at 3 (citing Chris

Dong, A New Amex Centurion Lounge Is Coming to Newark

Airport—What to Know, Travel + Leisure (Sept. 12, 2023),

https://www.travelandleisure.com/amexcenturion-lounge-newark-

7968421));

• “While an open secret since 2021, when Amex first secured a 15-

year lease for a 17,000 square-foot space in Terminal A at Newark

Airport, per The Points Guy that year, official confirmation of an

opening never came. Still reeling from the pandemic and planning

the latest addition, an assumed date of August 2023 came and went.

But that has changed now, with American Express announcing the

newest Centurion Lounge will open in 2026.” (Pl. Sur-Reply at 3

(citing Pranjal Pande, American Express To Open Centurion

Lounge At Newark Airport In 2026, Simple Flying (Sept. 12, 2023),

https://simpleflying.com/american-express-to-open-centurion-

lounge-atnewark- airport-in

2026/#:~:text=Opening%20in%202026,of%20an%20opening%20

never%20came));

• “When the lease was approved in 2021, the Port Authority said that

the Amex lounge should open in 2023. Maybe the Port Authority

was overly optimistic because Amex’s opening timeline of 2026 is

three years after the year originally shared.” (Pl. Sur-Reply at 3

(citing Zach Griff, New details: Amex will open a Centurion Lounge

in Newark Airport, The Points Guy (Sept. 12, 2023),

https://thepointsguy.com/news/amexcenturion-lounge-coming-to-

newark/)).

(Pl. Sur-Reply at 3–4). Based on the aforementioned statements, Plaintiff withdrew its consent to

transfer this case to the Southern District of New York and requested that the Court hold an

evidentiary hearing to allow Defendants to explain what appear to be contradicting statements

regarding its presence at Newark Liberty International Airport. (Pl. Sur-Reply at 3). In

Defendants’ response to Plaintiff’s Sur-Reply, Defendants note that even though Plaintiff seeks an

evidentiary hearing to test the veracity of statements made by Defendants to the Court in

conjunction with its motion to dismiss for improper venue, there is nothing false or misleading

about their statements that no lease had been executed at Newark Liberty International Airport at

the time that its Moving Brief and Reply had been submitted on August 21, 2023 and September

6, 2023 respectively. (Def. Sur-Reply at 1). Further, Defendants maintain that even though they

may have signed a lease for space at Newark Liberty International Airport, venue is still improper

in the United States District Court for the District of New Jersey because venue is determined by

the circumstances as they exist at the time the complaint is filed. (Id. at 1–2). As such, they

contend that a lease signed on September 12, 2023—months after the May 15, 2023 Complaint

was filed and after briefing on Defendants’ motion to dismiss for improper venue was complete—

is immaterial and does not change the facts that support Defendants’ motion. (Id.). Accordingly,

Defendants request that the Court deny Plaintiff’s request for an evidentiary hearing as futile and

unnecessary and grant Defendants’ motion to dismiss or transfer this action to the United States

District Court for the Southern District of New York. (Id. at 3–4). For the reasons set forth below,

the Court finds that Defendants’ lease at Newark Liberty International Airport is insufficient to

show that Defendants maintain a regular and established place of business in the District of New

Jersey, and thus is insufficient to support proper venue in this District.

As an initial matter, though Defendants contend that venue is determined by the

circumstances as they exist at the time the complaint is filed (Mov. Br. at 7; Def. Sur-Reply at 1–

2), the Federal Circuit has not determined the point in time at which venue is to be analyzed under

Section 1400(b), and a circuit split appears to have emerged on the issue. See In re Google LLC,

949 F.3d 1338, 1340 n.1 (Fed. Cir. 2020) (acknowledging, but not resolving, circuit split on timing

for determining patent venue). One line of cases holds that patent venue should be determined

based on the facts that exist at the time the action was filed, as doing so best adheres to the language

of Section 1400(b). See, e.g., NetSoc, LLC v. Chegg Inc., No. 18-10262, 2019 WL 4857340, at *2

(S.D.N.Y. Oct. 2, 2019) (holding that patent venue “is to be analyzed based on facts existing at the

time th[e] action [i]s commenced”); Square One Choices Inc. v. Ditec Sols. LLC, No. 22-7680,

2023 WL 5277869, at *9 (S.D.N.Y. Aug. 16, 2023) (same); TrackThings LLC v. NETGEAR, Inc.,

No. 21-5440, 2022 WL 2829906, at *5–6 (S.D.N.Y. July 20, 2022) (same); Galderma Labs., L.P.

v. Teva Pharms. USA, Inc., 290 F. Supp. 3d 599, 612 (N.D. Tex. 2017) (same); cf. Flowers Indus.,

Inc. v. FTC, 835 F.2d 775, 776 n.1 (11th Cir. 1987) (holding in the context of the general venue

statute that “venue must be determined based on the facts at the time of filing”). Other courts have

held that patent venue should be assessed based on the facts that exist at the time the cause of

action accrues, so long as a suit is filed within a reasonable time thereafter. See, e.g., San Shoe

Trading Corp. v. Converse Inc., 649 F. Supp. 341, 343–45 (S.D.N.Y. 1986) (citing Welch Sci. Co.

v. Hum. Eng’g Inst., Inc., 416 F.2d 32 (7th Cir. 1969)). Nevertheless, here, it is not necessary to

resolve this conflict because—as will be discussed below—Plaintiff has failed to meet its burden

of establishing proper venue based on the facts that existed at the time this action was filed or at

any other time.

As already discussed, Plaintiff contends that Defendants maintain a regular and established

place of business in the District of New Jersey because on September 12, 2023, news reports

announced that Defendants signed a lease to operate their Centurion Lounge at Newark Liberty

International Airport. (Pl. Sur-Reply at 2–3). However, even if the Court could consider this

lease—signed months after the May 15, 2023 Complaint was filed—in determining whether venue

is proper in this case, that lease would still be insufficient in establishing that Defendants maintain

a regular and established place of business in the District of New Jersey. This is because Plaintiffs

have not demonstrated the second Cray factor—that the leased property in Newark Liberty

International Airport is “regular and established.” In re Cray Inc., 871 F.3d at 1360.

The Federal Circuit’s decision in In re Google LLC, 949 F.3d 1338, 1340 n.1 (Fed. Cir.

2020) is instructive on this point. In In re Google, a plaintiff sued Google for patent infringement

in the Eastern District of Texas, alleging that venue was proper based on the presence of several

Google Global Cache servers in the District. In re Google, 949 F.3d at 1340. Google did not own

the datacenters where the servers were hosted but contracted with two internet service providers

(ISPs) in the district to host the servers. Id. In deciding whether venue was proper in the Eastern

District of Texas, the Federal Circuit clarified that a “‘regular and established place of business’

requires the regular, physical presence of an employee or other agent of the defendant conducting

the defendant’s business at the alleged ‘place of business.’” Id. at 1345. As such, the Federal

Circuit determined that venue was improper in the Eastern District of Texas in that case where

Google only maintained servers that were operated by third-party providers and did not have any

employees or agents located in that District. Id. at 1340, 1344–47. Likewise, here, though it

appears that Defendants signed a lease to operate their Centurion Lounge at Newark Liberty

International Airport, there is no indication that any employee or other agent of the Defendants

conducts Defendants’ business at that location. In fact, the press releases that Plaintiff relies on in

arguing that venue is proper in this case state that the Centurion Lounge at Newark Liberty

International Airport is not scheduled to open until 2026. (See, e.g., (Pl. Sur-Reply at 3 (citing

Pranjal Pande, American Express To Open Centurion Lounge At Newark Airport In 2026, Simple

Flying, (Sept. 12, 2023), (“Still reeling from the pandemic and planning the latest addition, an

assumed date of August 2023 came and went. But that has changed now, with American Express

announcing the newest Centurion Lounge will open in 2026.” (emphasis added))); Pl. Sur-Reply

at 3 (citing Zach Griff, New details: Amex will open a Centurion Lounge in Newark Airport, The

Points Guy (Sept. 12, 2023), https://thepointsguy.com/news/amexcenturion-lounge-coming-to-

newark/ (“When the lease was approved in 2021, the Port Authority said that the Amex lounge

should open in 2023. Maybe the Port Authority was overly optimistic because Amex’s opening

timeline of 2026 is three years after the year originally shared” (emphasis added)))). And Plaintiff

has not pointed to any other facts that indicate that any employee or other agent of the Defendants

conducts Defendants’ business at the leased property in Newark Liberty International Airport. As

such, even construing the facts in Plaintiffs’ favor, the mere existence of this leased property—

from which no employee or agent of Defendants appears to be working—is insufficient to establish

venue in the District. In re Google LLC, 949 F.3d at 1345 (stating that venue requires “the regular,

physical presence of an employee or other agent of the defendant conducting the defendant’s

business at the alleged ‘place of business’”); Bausch Health Ireland Ltd. v. Mylan Lab'ys Ltd., No.

21-10403, 2022 WL 683084, at *6 (D.N.J. Mar. 8, 2022) (“Even construing the facts in [p]laintiffs’

favor, the mere existence of this property, from which no Mylan Inc. employee has worked from,

is insufficient to establish venue in the District.”); ICharts LLC v. Tableau Software, LLC, No. 23-

1225, 2024 WL 2305214, at *6 (W.D. Tex. May 21, 2024) (“Tableau may have historically used

this property to conduct business, but Tableau has not presented evidence suggesting that it is still

used as a regular place of business. Thus, while the 260 California Avenue property is a physical

property that Tableau continues to lease, Tableau cannot use that location to establish that it has a

regular and established place of business in NDCA.” (emphasis added)). Because Plaintiff has not

shown the “regular, physical presence of an employee or other agent” of Defendants at Newark

Liberty International Airport, it has failed to meet its burden of demonstrating the second Cray

factor—that Defendant has a “regular and established place of business” at that location. In re

Google LLC, 949 F.3d at 1345. And because all three Cray factors must be met for venue to be

proper, Defendants’ purported presence at Newark Liberty International Airport is insufficient to

support proper venue in this District. See Andra Grp., LP v. Victoria’s Secret Stores, L.L.C., 6

F.4th 1283, 1290 (Fed. Cir. 2021).5

5 To be sure, in its Opposition Brief, Plaintiff cited to multiple public statements that indicated that in 2021

Port Authority was authorized to enter into a lease with Defendants to operate a Centurion Lounge in Newark Liberty

International Airport with the lease set to start in 2022 and with the Lounge scheduled to open in 2023. (Opp. Br. at

3 (citing Ben Schlappig, Amex To Open Biggest-Ever Centurion Lounge At Newark Airport (EWR), One Mile At A

Time (Updated Aug. 26, 2022), https://onemileatatime.com/news/amex-centurion-lounge-newark/ (“The lease will

start around January 1, 2022, and will continue for around 15 years. Payment is expected to start around August 1,

2023, or when the lounge opens”)); Id. at 4 (citing Minutes, Port Authority of New York & New Jersey at 65-66 (Sept.

30, 2021), https://www.panynj.gov/corporate/en/board-meeting-info/board-minutes-contractauthorizations.html.

(providing that on September 30, 2021, the Port Authority’s Committee on Operations authorized the Port Authority’s

ii. Operations of American Express Global Business Travel

As set forth above, Plaintiff next alleges that venue is proper in this District because, based

upon publicly available information, American Express Global Business Travel, which is an agent

of Defendants, has a location at 101 Hudson Street, 34th Floor, Jersey City, New Jersey 07302.

(Compl. ¶ 11). In moving to dismiss Plaintiff’s Complaint for improper venue, Defendants

contend that the office space of GBT is insufficient to show that Defendants maintain a regular

and established place of business in the District of New Jersey because Plaintiff has failed to show

that this office space is a “place of the [D]efendant[s],” as is necessary to establish proper venue.

(Mov. Br. at 10–13). More specifically, they maintain that GBT’s office space cannot be

attributable to Defendants for purposes of venue because GBT is an independent, publicly-traded

company. (Id. at 10–12). Defendants explain that GBT was originally the Global Business Travel

division within Amex Co. (Id. at 10). However, they explain that in 2014, Amex Co. divested

50% of that division to a group of investors led by Certares LP. (Id. at 10–11 (citing American

Express to Spin Off Business Travel Division Into Joint Venture,

https://www.forbes.com/sites/samanthasharf/2014/03/17/american-express-to-spin-off-business-

Executive Director to enter into a lease with American Express Travel Related Services Company, Inc. for the Lounge

and stating that under the approved terms, “the lease would commence on or about January 1, 2022 and continue for

15-years after the commencement of rent payments to the Port Authority.”))). Further, in its Sur-Reply Plaintiff cited

to public statements which indicated that Defendants’ lease at Newark Liberty International Airport had been approved

and/or secured in 2021. (Pl. Sur-Reply at 3 (citing Zach Griff, New details: Amex will open a Centurion Lounge in

Newark Airport, The Points Guy (Sept. 12, 2023), https://thepointsguy.com/news/amexcenturion- lounge-coming-to-

newark/. (“When the lease was approved in 2021 . . .”)). However, as of August 2023, Defendants clarified in a sworn

declaration that Defendants had not even executed a lease for a lounge—or for that matter any other facility—at

Newark Liberty International Airport. (Gadgil Decl. ¶ 7). And regardless, the public statements that Plaintiff cites to

in its Sur-Reply indicate that Defendants do not plan to open the Centurion Lounge at Newark Liberty International

Airport until 2026. (Pl. Sur-Reply at 3 (citing Zach Griff, New details: Amex will open a Centurion Lounge in Newark

Airport, The Points Guy (Sept. 12, 2023), https://thepointsguy.com/news/amexcenturion-lounge-coming-to-newark/

(“When the lease was approved in 2021, the Port Authority said that the Amex lounge should open in 2023. Maybe

the Port Authority was overly optimistic because Amex’s opening timeline of 2026 is three years after the year

originally shared” (emphasis added))). And Plaintiff has not pointed to any other facts that indicate that any employee

or other agent of the Defendants conducts Defendants’ business at the leased property in Newark Liberty International

Airport or that the lounge will be operational at an earlier date. As such, Plaintiff has failed to meet its burden of

showing that Defendants’ lease at Newark Liberty International Airport is sufficient to support proper venue in this

District.

travel-division/)). Thereafter, in 2021, GBT announced plans to become a publicly-traded

company through a merger with Apollo Strategic Growth Capital. (Id. at 11 (citing AmEx Global

Business Travel to go public via $5.3 bln Apollo SPAC deal,

https://www.reuters.com/markets/deals/amex-global-business-travel-nears-53-bln-apollo-spac-

deal-wsj-2021-12-03/)). And “[f]ollowing the completion of the merger, the newly formed

company began trading on the New York Stock Exchange on May 31, 2022—almost a year before

the Complaint was filed—with the symbol GTBG.” (Id. (citing American Express Global

Business Travel Becomes Publicly Traded Company,

https://investors.amexglobalbusinesstravel.com/investors/news/news-details/2022/American-

Express-Global-Business-Travel-Becomes-Publicly-Traded-Company/default.aspx)).

Defendants note that Amex Co. presently holds a minority interest in the publicly-traded GBT

company. (Id.). Further, Defendants point out that GBT itself publicly and expressly disclaims

any corporate relationship to Defendants as follows:

Global Business Travel Group, Inc. (NYSE: GBTG) uses certain

trademarks and service marks of American Express Company or its

subsidiaries (American Express) in the “American Express Global

Business Travel” and “American Express Meetings & Events”

brands and in connection with its business for permitted uses only

under a limited license to its subsidiary from American Express

(Licensed Marks). The Licensed Marks are trademarks or service

marks of, and the property of, American Express. American

Express holds a minority interest in GBTG, which operates as a

separate company from American Express. As such, an

investment in GBTG is not an investment in American Express.

American Express shall not be responsible in any manner

whatsoever for, and in respect of, the statements herein, all of

which are made solely by GBTG.

(Id. at 11–12 (citing Global Business Travel | Investor Relations,

https://investors.amexglobalbusinesstravel.com/overview/default.aspx) (emphasis added)). In

addition, though Plaintiff alleges that GBT is an agent of Defendants because it acts in concert

with Defendants and conducts business in the travel industry, Defendants maintain that such

conclusory allegations are insufficient to support an agency relationship. (Id. at 12). As such,

Defendants contend that the office space of GBT cannot be attributable to Defendants for purposes

of venue. (Id. at 10–13). Plaintiff does not contest any of these facts or arguments. (See generally

Opp. Br. & Pl. Sur-Reply). For the reasons set forth below, the Court agrees with Defendants and

finds that the office space of GBT is insufficient to show that Defendants maintain a regular and

established place of business in the District of New Jersey.

To start, Plaintiff has failed to meet its burden of demonstrating the second Cray factor—

that Defendants conduct “regular and established” business at the office space of GBT. In re Cray

Inc., 871 F.3d at 1360. As already discussed, “a ‘regular and established place of business’

requires the regular, physical presence of an employee or other agent of the defendant conducting

the defendant’s business at the alleged ‘place of business.’” In re Google, 949 F.3d at 1345. “An

agency relationship is a ‘fiduciary relationship that arises when one person (a ‘principal’) manifests

assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject

to the principal’s control, and the agent manifests assent or otherwise consents to act.’” Id. (citing

Restatement (Third) of Agency § 1.01 (Am. L. Inst. 2006)). “The essential elements of agency

are [i] the principal’s ‘right to direct or control’ the agent’s actions, [ii] ‘the manifestation of

consent by [the principal] to [the agent] that the [agent] shall act on his behalf,’ and [iii] the

‘consent by the [agent] to act.’” Id. (alterations in original) (quoting Meyer v. Holley, 537 U.S.

280, 286 (2003). “The party asserting that a relationship of agency exists generally has the burden

in litigation of establishing its existence.” In re Volkswagen Grp. of Am., Inc., 28 F.4th 1203, 1208

(Fed. Cir. 2022). Here, Plaintiff has failed to set forth any facts indicating that any employee of

the Defendants conducts Defendants’ business at GBT’s office space in Jersey City. (See generally

Opp. Br. & Pl. Sur-Reply). Nor has Plaintiff set forth any facts to show that GBT, which operates

in Jersey City, is an agent of Defendants that conducts Defendants’ business at that location. (See

generally Opp. Br. & Pl. Sur-Reply). Though Plaintiff alleges in a conclusory manner that GBT

“is an agent of” Defendants and “acts in concert with” Defendants in the travel industry (Compl.

¶ 11), it fails to set forth any facts indicating the essential elements of agency including (i) whether

Defendants have the right to direct or control GBT’s actions, (ii) whether Defendants have

manifested consent to GBT that GBT act on their behalf, and (iii) whether GBT consented to so

act. In re Google, 949 F.3d at 1345. Without such additional facts, the Court cannot conclude that

GBT is an agent of the Defendants conducting the Defendants’ business at GBT’s office space in

Jersey City. Id. at 1345–47; see also Andra, 6 F.4th at 1290 (“Because Andra has not demonstrated

that LBI, Brand, or Direct has ‘the right to direct or control’ the actions of Store employees, it has

not shown the ‘regular, physical presence of an employee or other agent’ of LBI, Brand, or Direct

in the District.”); Ocugiene, Inc. v. ThermaMEDx, LLC, No. 22-5607, 2022 WL 18284980, at *2

(C.D. Cal. Dec. 8, 2022) (declining to find venue based on theory of agency where “[p]laintiff has

not addressed each of the agency elements, let alone established them.”). Further, though GBT

appears to have a limited license to use American Express trademarks (Mov. Br. at 11–12), that

fact alone is not sufficient to support an agency relationship. See, e.g., In re Volkswagen Grp. of

Am., Inc., 28 F.4th 1203, 1211–12 (Fed. Cir. 2022) (finding that plaintiffs failed to demonstrate

that dealerships were defendants’ agents for purposes of venue even though those dealerships

displayed the defendants’ logos). As such, Plaintiff has failed to meet its burden of demonstrating

the second Cray factor—that Defendants conduct “regular and established” business at the office

space of GBT. In re Cray Inc., 871 F.3d at 1360.

Further, Plaintiff has failed to meet its burden of demonstrating the third Cray factor—that

the office space of GBT is a “place of the [D]efendant[s].” In re Cray Inc., 871 F.3d at 1360. The

Federal Circuit has identified a number of relevant considerations that may assist courts in

determining whether a place of business is the place of the defendant, including whether the

defendant: (a) owns or leases the place or exercises other attributes of possession or control over

the place; (b) has conditioned employment on an employee's continued residence in the district or

the storing of materials at a place in the district so that they can be distributed or sold from that

place; (c) markets or advertises to the extent it indicates that the defendant itself holds out a place

for its business in the district; (d) represents that it has a place of business in the district; and (e)

conducts similar activity at the place compared to the defendant's other places of business. Id. at

1363–64. Venue may also be imputed under an alter-ego or veil-piercing theory. See Celgene

Corp. v. Mylan Pharms. Inc., 17 F.4th 1111, 1125 (Fed. Cir. 2021). “A threshold inquiry when

determining whether the place of business of one company can be imputed to another, related

company is whether they have maintained corporate separateness.” Andra, 6 F.4th at 1289. “If

corporate separateness has not been maintained, the place of business of one corporation may be

imputed to the other for venue purposes.” Id. But “where related companies have maintained

corporate separateness, the place of business of one corporation is not imputed to the other for

venue purposes.” Id. Corporate separateness is an issue of regional-circuit law. See Wechsler v.

Macke Int’l Trade, Inc., 486 F.3d 1286, 1295 (Fed. Cir. 2007). The relevant veil-piercing theory

in the Third Circuit is called the “alter ego” doctrine, among other names. See Pearson v.

Component Tech. Corp., 247 F.3d 471, 484 & n.2 (3d Cir. 2001). Under that doctrine, courts will

disregard the corporate form to “prevent fraud, illegality, or injustice,” “when recognition of the

corporate entity would defeat public policy or shield someone from liability for a crime,” or “when

the parent so dominated the subsidiary that it had no separate existence.” Id. at 484. Here,

Defendants point out that GBT is an independent, publicly-traded company. (Mov. Br. at 11).

Though Defendants acknowledge that Amex Co. presently holds a minority interest in the

publicly-traded GBT company, Plaintiff has failed to set forth any facts showing why the Court

should disregard the corporate identities of two separate companies such that the office space of

GBT in Jersey City could be imputed to Defendants for venue purposes. (Id.). Further, though

GBT appears to have a limited license to use American Express trademarks (id.), “courts have

refused to pierce the veil even when subsidiary corporations use the trade name of the parent.”

Pearson, 247 F.3d at 485. There are no other facts to indicate that the GBT office space in Jersey

City is the place of the Defendants. More specifically, Plaintiff has not indicated that the GBT

office space is rented, leased or owned by Defendants, nor do they set forth facts showing that

Defendants ever marketed or held GBT out to the public as Defendants or ratified the GBT office

space in Jersey City as their own place of business. As such, Plaintiff has failed to meet its burden

of demonstrating the third Cray factor—that that the office space of GBT is a “place of the

[D]efendant[s].” In re Cray Inc., 871 F.3d at 1360. Because all three Cray factors must be met

for venue to be proper against a defendant, the GBT office in Jersey City is insufficient to support

proper venue in this District.

In sum, Plaintiff has failed to meet its burden of establishing proper venue in this District

based on the facts that existed at the time this action was filed, or at any other time.

B. Venue Discovery

To the extent that Plaintiff argues that it is entitled to venue discovery before the Court

decides Defendants’ Motion, the Court disagrees.6 (Opp. Br. at 2; Pl. Sur-Reply at 1–4). The

6 The Federal Circuit does not appear to have addressed whether Federal Circuit law or regional circuit law

applies when considering a request for venue discovery for purposes of § 1400(b). Nevertheless, courts in this circuit

Supreme Court has stated that “where issues arise as to jurisdiction or venue, discovery is available

to ascertain the facts bearing on such issues.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,

351 n. 13 (1978). In general, courts permit venue discovery “unless the plaintiff’s claim is ‘clearly

frivolous.’” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003) (quoting

Massachusetts Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997));

see also Galderma Laboratiores, L.P. v. Medinter US, LLC, No. 18-1892, 2019 WL 13114421, at

*3 (D. Del. Oct. 25, 2019). Nonetheless, to show that discovery is warranted, a party must, at a

minimum, state a non-frivolous basis for venue and do so with “reasonable particularity.” Id.; see

also Step Two, S.A., 318 F.3d at 456 (quoting Mellon Bank (E.) PSFS, Nat. Ass’n v. Farino, 960

F.2d 1217, 1223 (3d Cir. 1992)). That is, a court should not just permit venue discovery as a matter

of course; before allowing the discovery to proceed, the court must be satisfied that there is some

indication that venue in the forum is appropriate as to the defendant. Galderma Laboratiores,

L.P., 2019 WL 13114421, at *3. A plaintiff may not “undertake a fishing expedition based only

upon bare allegations, under the guise of [venue] discovery.” Id. (internal quotation marks and

citations omitted); see also Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 108 n.38 (3d Cir.

2015) (“[J]urisdictional discovery is not available merely because the plaintiff requests it.”).

Here, the Court finds that Plaintiff has not presented facts sufficient to show that venue

discovery is warranted. Though Plaintiff emphasizes that Defendants have a presence at Newark

Liberty International Airport based on the lease Defendants signed at that location (Pl. Sur-Reply

at 1–4), they have failed to set forth any facts indicating that any employee or other agent of the

Defendants conducts Defendants’ business at that location. In fact, as set forth above, the press

have applied regional circuit law to such requests. See Novartis Pharms. Corp. v. Handa Neuroscience, LLC, No. 21-

645, 2022 WL 610771, at *8 (D. Del. Mar. 1, 2022) (applying the Third Circuit’s jurisdictional-discovery standard to

venue discovery); Bausch Health Ireland Ltd., 2022 WL 683084, at *9. As such, the Court will do the same.

releases that Plaintiff relies on in arguing that venue is proper in this case state that the Centurion

Lounge at Newark Liberty International Airport is not scheduled to open for years. (See, e.g., Pl.

Sur-Reply at 3 (citing Pranjal Pande, American Express To Open Centurion Lounge At Newark

Airport In 2026, Simple Flying, (Sept. 12, 2023), (“Still reeling from the pandemic and planning

the latest addition, an assumed date of August 2023 came and went. But that has changed now,

with American Express announcing the newest Centurion Lounge will open in 2026.” (emphasis

added))); Pl. Sur-Reply at 3 (citing Zach Griff, New details: Amex will open a Centurion Lounge

in Newark Airport, The Points Guy (Sept. 12, 2023),

https://thepointsguy.com/news/amexcenturion-lounge-coming-to-newark/ (“When the lease was

approved in 2021, the Port Authority said that the Amex lounge should open in 2023. Maybe the

Port Authority was overly optimistic because Amex’s opening timeline of 2026 is three years after

the year originally shared” (emphasis added)))). As such, to the extent that Plaintiff argues that it

is entitled to venue discovery, its request is futile and unsupported by specific allegations or

submitted evidence. See Galderma Laboratiores, L.P., 2019 WL 13114421, at *6–7 (denying

discovery where “[p]laintiffs have failed to point to any record evidence relating to most of the

factors that the Third Circuit has used to address corporate separateness” and “what little evidence

[p]laintiffs have put forward does not speak impactfully to the prospect that Anteco’s corporate

separateness from Attwill is a ‘legal fiction’” and thereby would support venue); Symbology

Innovations, LLC v. Lego Sys., Inc., 282 F. Supp. 3d 916, 934 (E.D. Va. 2017) (denying a request

for venue-related discovery because “[plaintiff] fails to identify any source of information or fact

that would change the [c]ourt’s analysis of whether [defendant] has a regular and established place

of business in this District.”).7

7 Further, to the extent that Plaintiff requests an evidentiary hearing in this case, any such request is denied. In

Plaintiff’s Sur-Reply, it requests that the Court hold an evidentiary hearing to allow Defendants an opportunity to

C. Transfer

Because venue is not proper in the District of New Jersey, the Court must either dismiss

the case, or “if it be in the interest of justice, transfer [it] to any district or division in which it could

have been brought.” 28 U.S.C. § 1406(a). “The decision whether a transfer or dismissal is in the

interest of justice rests within the sound discretion of the district court.” Pers. Audio, LLC v.

Google, Inc., 280 F. Supp. 3d 922, 936 (E.D. Tex. 2017) (internal quotations omitted). However,

“[d]ismissal is considered to be a harsh remedy . . . and transfer of venue to another district in

which the action could originally have been brought, is the preferred remedy.” Best Med. Int’l,

Inc. v. Elekta AB, No. 18-1600, 2019 WL 3304686, at *2 (D. Del. July 23, 2019) (internal quotation

marks and citation omitted).

Here, the interests of justice favor transfer to the United States District Court for the

Southern District of New York in lieu of dismissal. As alleged in the Complaint, Defendants are

“New York corporation[s],” with their “principal place[s] of business located at 200 Vesey Street,

New York, New York 10285.” (Compl. ¶¶ 5–6). Accordingly, Defendants urge the Court to

transfer this case to the Southern District of New York where they both reside for purposes of 28

U.S.C. § 1400(b). (Mov. Br. at 14–16). And in fact, Plaintiff had previously agreed that this case

could be transferred to the Southern District of New York and thereby indicated that that this case

could have been brought in that District. (See generally Opp. Br.). As such, venue is proper in

the United States District Court for the Southern District of New York and in the interest of justice,

explain what appear to be misstatements to the Court regarding its presence at Newark Liberty International Airport.

(Pl. Sur-Reply at 3–4). The Court declines to entertain this request. As Defendants explain, at the time Defendants

submitted their motion to dismiss for improper venue on August 21, 2023 and their reply in support of the motion on

September 6, 2023, Defendants had not yet executed a lease at Newark Liberty International Airport and Plaintiff does

not state otherwise. (Def. Sur-Reply at 1). And there is nothing in the press releases that Plaintiff relies on to indicate

that the lease had been in place at those times. (Pl. Sur-Reply at 2–3). As such, there is nothing to indicate that

Defendants’ statements—that Defendants had not yet executed a lease at Newark Liberty International Airport as of

August 21, 2023 and September 6, 2023—were false or misleading. As such, Plaintiff’s request for an evidentiary

hearing to test the veracity of Defendants’ statements is unnecessary and therefore denied.

the Court exercises its discretion under 28 U.S.C. § 1406(a) to transfer this case to the Southern

District of New York. See TC Heartland, 581 U.S. at 262 (“[A] domestic corporation ‘resides’

only in its State of incorporation for purposes of the patent venue statute.”); ES Distribution, LLC

v. Hangtime LLC, No. 20-4069, 2020 WL 6689755, at *3 (D.N.J. Nov. 13, 2020) (“Here, the

interests of justice favor transfer to the United States District Court for the District of New Mexico

in lieu of dismissal. As the Court determined above, the District of New Mexico is an appropriate

venue for this matter as it is where Defendant is incorporated. Accordingly, this matter will be

transferred to the District of New Mexico.”); see also Alexsam, Inc. v. Simon Prop. Grp. (Texas),

L.P., No. 19-0331, 2021 WL 8441707, at *3 (E.D. Tex. Sept. 3, 2021) (transferring case against

Amex to Southern District of New York).8

IV. CONCLUSION

Based on the foregoing, Defendants’ motion to dismiss, or alternatively, its motion to

transfer (D.E. No. 40), is hereby GRANTED. This matter will be transferred to the United States

District Court for the Southern District of New York. An appropriate Order follows.

Dated: October 2, 2024 s/ Esther Salas

Esther Salas, U.S.D.J.

8 In Opposition, Plaintiff noted that it is anticipated that upon transfer to the Southern District of New York,

Defendants will improperly seek to file a second motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. (Opp. Br. at 5). Plaintiff contends that Defendants have waived their opportunity to file a Rule

12(b)(6) motion and this Court should so find. (Id. at 6). However, as Defendants point out (Reply at 1–2), any ruling

on whether Defendants can file a Rule 12(b)(6) motion after transfer would be premature because Defendants have

not yet filed such a Rule 12(b)(6) motion. Any such request can be properly entertained if and when Defendants

choose to file any such motion.