Case: 18-101     Document: 18       Page: 1    Filed: 11/22/2017




               NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                   ______________________

                In re: CARBONITE, INC.,
                         Petitioner
                  ______________________

                          2018-101
                   ______________________

    On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Texas in
No. 6:17-cv-00121-RWS-JDL, Judge Robert Schroeder, III.
                 ______________________

                       ON PETITION
                   ______________________

   Before PROST, Chief Judge, O’MALLEY and TARANTO,
                    Circuit Judges.
O’MALLEY, Circuit Judge.
                          ORDER
    Carbonite, Inc. petitions for a writ of mandamus
directing the United States District Court for the Eastern
District of Texas to dismiss this case for improper venue
or, alternatively, to address Carbonite’s arguments that
venue is improper. Specifically, Carbonite argues that the
district court clearly abused its discretion in determining
that Carbonite’s venue defense had been waived and that
the Supreme Court’s decision in TC Heartland LLC v.
Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017)
Case: 18-101      Document: 18   Page: 2   Filed: 11/22/2017



2                                     IN RE: CARBONITE, INC.




did not constitute an intervening change in law. Realtime
Data LLC opposes.
    We recently held that the Supreme Court’s decision in
TC Heartland effected a relevant change in the law and,
more particularly, that failure to present the venue objec-
tion earlier did not come within the waiver rule of Federal
Rule of Civil Procedure 12(g)(2) and (h)(1). In re Micron
Tech., Inc., No. 17-138 (Fed. Cir. Nov. 15, 2017). In light
of that decision, we deem it the proper course here for
Carbonite to first move the district court for reconsidera-
tion of its order denying the motion to dismiss. We there-
fore deny the petition for a writ of mandamus. Any new
petition for mandamus from the district court’s ruling on
reconsideration will be considered on its own merits.
      Accordingly,
      IT IS ORDERED THAT:
      The petition is denied.
                                 FOR THE COURT

                                  /s/ Peter R. Marksteiner
                                  Peter R. Marksteiner
                                  Clerk of Court
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