Case: 19-1952     Document: 137   Page: 1    Filed: 08/13/2020




         NOTE: This disposition is nonprecedential.


    United States Court of Appeals
        for the Federal Circuit
                   ______________________

           NAZIR KHAN, IFTIKHAR KHAN,
                 Plaintiffs-Appellants

                             v.

                HEMOSPHERE INC., ET AL.,
                   Defendants-Appellees

           MERIT MEDICAL SYSTEMS INC.,
              Defendant-Cross-Appellant

     HOSPITALS AND DOCTORS IMPLANTING
   UNPATENTED HERO GRAFT TO DOCTORS, ET
                      AL.,
                   Defendants
             ______________________

                    2019-1952, 2019-2394
                   ______________________

     Appeals from the United States District Court for the
 Northern District of Illinois in No. 1:18-cv-05368, Judge
 Virginia M. Kendall.
                 ______________________

                  Decided: August 13, 2020
                   ______________________

     NAZIR KHAN, IFTIKHAR KHAN, Burr Ridge, IL, pro se.
Case: 19-1952   Document: 137     Page: 2    Filed: 08/13/2020




 2                                 KHAN   v. HEMOSPHERE INC.



      BRENT P. LORIMER, Workman Nydegger, Salt Lake
 City, UT, for defendant-cross-appellant and defendants-ap-
 pellees Willaim J. Tapscott, James W. Campbell, Heather
 LeBlanc, Lee Forestiere, Edward Kim, Joy Garg Kaiser
 Permanente, Marius Saines, Gustavo Torres, Charles M.
 Eichler, Eric Ladenheim, Robert S. Brooks, Anne Lally,
 Matthew G. Brown, Abilio Coello, Howard E. Katzman,
 Stephen Wise Unger, Fernando Kafie, Robert Hoyne, Rob-
 ert Brumberg, Murray L. Shames, Victor Bowers, Heidi A.
 Pearson, Jeffrey Pearce, Michael Klychakin, William
 Schroder, Jonathan R. Molnar, Christopher Wixon, Julio
 Vasquez, William Soper, Jeffrey Silver, Stephen Jensik,
 Gary Lemmon, Raghu L. Motagnahalli, Ruban Nirmalan,
 Chase Tattersall, William Ducey, Michael Willerth, Dennis
 Fry, Jeffrey Cameron, David Smith, Amit Dwivedi, Joseph
 Griffin, Albert Sam, Andrew Sherwood, Larry D. Flanagan,
 Thomas Reifsnyder, David B. Leeser, Andres Schanzer,
 Robert Molnar, Peter Wong, Kourosh Baghelai, Howard L.
 Saylor, Ty Dunn, William Omlie, James R. Rooks, Timothy
 C. Hodges, Eddy Luh, Pankaj Bhatnagar, Benjamin West-
 brook, Yvon R. Baribeau, George Blessios, Gary Tannen-
 baum, Jason Dew, Jason Burgess, Paul Orland, James D.
 Lawson, Todd Early, Randal Bast, Clinton Atkinson, Jeff
 Stanley, Virginia Wong, Damian Lebamoff, Jonathan Ve-
 lasco, Boris Paul, Walter Rizzoni, Jon R. Henwood, Carlos
 Rosales, Ellen Dillavou, Eugene Simoni, Alexander Uribe,
 Edward Beverly Morrison, Michael Gallichio, Angelo San-
 tos, Chad Laurich, Eric Gardner, Stephen Settle, Blair Jor-
 dan, Tuan-Hung Chu, Stephen Hohmann, John C. Kedora,
 Hector Diaz-Luna, Luis G. Echeverri, Allen Hartsell, Jef-
 frey Martinez, Gerardo Ortega, Boulos Toursarkissian,
 Todd Smith, Mountain Medial Physician Specialists,
 Thomas Ross, Matthew J. Borkon, W. Andrew Tierney,
 Thomas Hatsukami, Herbert Oye, Thomas Winek, Allan
 Roza, Ignacio Rua, Sheppard Mondy, Alok K. Gupta, Brad
 Grimsley. Also represented by DAVID R. TODD, THOMAS R.
 VUKSINICK.
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 KHAN   v. HEMOSPHERE INC.                                  3



    STEVEN MCMAHON ZELLER, Dykema Gossett PLLC,
 Chicago, IL, for defendants-appellees Hemosphere Inc.,
 CryoLife Inc.

    PATRICK R. JAMES, James, House, Downing & Lueken,
 PA, Little Rock, AR, for defendant-appellee Louis Elkins.

     BRIAN DAVID SCHMALZBACH, McGuireWoods LLP,
 Richmond, VA, for defendants-appellees Mark Grove,
 Javier Alvarez-Tostado. Also represented by KATHRYN
 ANN CAMPBELL, EDWIN E. BROOKS, SARAH RASHID, Chicago,
 IL.

     JENNIFER KURCZ, Baker & Hostetler LLP, Chicago, IL,
 for defendant-appellee Siddarth Patel. Also represented by
 ALAINA J. LAKAWICZ, Philadelphia, PA.

    DAVID ALAN ROODMAN, Bryan Cave Leighton Paisner
 LLP, St. Louis, MO, for defendants-appellees Luis
 Sanchez, Patrick Geraghty. Also represented by BARBARA
 SMITH, JASON MEYER.
                 ______________________

    Before PROST, Chief Judge, MOORE and STOLL, Circuit
                          Judges.
 STOLL, Circuit Judge.
     These appeals arise from an action for patent infringe-
 ment. Drs. Nazir Khan and Iftikhar Khan accused Hemo-
 sphere Inc., CryoLife Inc., and Merit Medical Systems, Inc.,
 along with over 300 hospitals and individual physicians, of
 infringing a claim of U.S. Patent No. 8,747,344, directed to
 an arteriovenous shunt. The Khans challenge the district
 court’s decision dismissing the action with prejudice for
 want of prosecution due to the Khans’ insufficient and un-
 timely service of their complaint and, alternatively, for im-
 proper venue and misjoinder. The Khans also challenge
 the district court’s decisions granting the defendants’
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 4                                  KHAN   v. HEMOSPHERE INC.



 motion for sanctions and denying the Khans’ cross-motion
 for sanctions. Merit Medical cross-appeals the district
 court’s decision denying its motion to declare the case ex-
 ceptional and to award attorney fees under 35 U.S.C. § 285.
 Because the district court did not abuse its discretion in
 dismissing the action, granting the defendants’ sanctions
 motion, denying the Khans’ sanctions motion, or denying
 Merit Medical’s motion for attorney fees under § 285, we
 affirm.
                        BACKGROUND
     The Khans are Illinois physicians and have exclusive
 rights to the ’344 patent. In their complaint filed on Au-
 gust 7, 2018, the Khans alleged that the defendant corpo-
 rations, hospitals, and physicians directly and indirectly
 infringed claim 13 of the ’344 patent by manufacturing or
 implanting into patients the accused HeRO® Graft shunt.
 The Khans sent a waiver of service of summons form and
 their complaint by mail to the over 300 defendants, the
 vast majority of whom resided and practiced outside of Illi-
 nois. With the exception of three physicians, none of the
 defendants returned a completed waiver form.
     Following an initial status conference in Novem-
 ber 2018, the district court dismissed without prejudice the
 Khans’ claims against Merit Medical, CryoLife, and three
 physicians for improper venue. Order at 2–3, Khan
 v. Hemosphere Inc., No. 18-cv-05368 (N.D. Ill. Jan. 23,
 2019), ECF No. 76. According to the district court, the
 Khans had not contended that any of these defendants re-
 sided in the Northern District of Illinois, and the Khans
 had failed to plausibly allege that any of them infringed the
 asserted claim in the district and had a “regular and estab-
 lished place of business” in the district, as required under
 28 U.S.C. § 1400(b). Id. at 2. The district court “cau-
 tion[ed] plaintiffs to take heed of the potentially meritori-
 ous arguments raised by defendants thus far in considering
 the proper and most effective way to prosecute their case
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 KHAN   v. HEMOSPHERE INC.                                   5



 going forward.” Id. at 3. The district court also held its
 second status conference that same day. While the Khans
 insisted at the conference that they had completed proper
 service for all defendants, by that date—more than
 150 days after the filing of the complaint—they had filed
 proof of waiver for only one defendant. In response to the
 Khans’ argument that placing the waiver request in the
 mail is equivalent to service, the district court informed the
 Khans that a request to waive service is merely a request
 and that waiver by the defendants is not mandatory.
     The district court subsequently denied the Khans’ mo-
 tion to reconsider the dismissal order because the motion
 “impermissibly rehash[ed] previously unsuccessful argu-
 ments.” Order at 2, Khan v. Hemosphere Inc., No. 18-cv-
 05368 (N.D. Ill. Feb. 13, 2019), ECF No. 84. The district
 court “again caution[ed] Plaintiffs that prosecuting a pa-
 tent case of any size, much less one against three hundred
 defendants, is a complex endeavor,” and that they “should
 carefully evaluate clearly established requirements set
 forth in governing statutes and other applicable authority
 so as not to unnecessarily occupy the time and resources of
 the Court and other involved parties.” Id.
      Thereafter, more than 100 of the remaining defendants
 filed 11 separate motions to dismiss on various grounds, in-
 cluding insufficient service, untimely service, improper
 venue, misjoinder, and lack of personal jurisdiction. A sub-
 set of the non-Illinois-resident defendants also moved for
 sanctions against the Khans pursuant to Rule 11 of the
 Federal Rules of Civil Procedure for the Khans’ repeated
 assertions that venue was proper and that service was
 properly completed. The district court granted the motions
 and dismissed the claims against the defendants for want
 of prosecution. Khan v. Hemosphere Inc., No. 18-cv-05368,
 2019 WL 2137378, at *1 (N.D. Ill. May 16, 2019).
     The district court held that dismissal of all remaining
 defendants was warranted due to the Khans’ “insufficient
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 6                                  KHAN   v. HEMOSPHERE INC.



 and untimely attempts at service.” Id. at *2. The district
 court rejected the Khans’ argument that they had complied
 with the requirements of Rule 4 of the Federal Rules of
 Civil Procedure by simply requesting waivers from the de-
 fendants. Id. The district court also found that the Khans
 had not attempted to personally serve any defendant. Id.
 Instead, the Khans asserted that they completed service by
 mailing the summons and complaint to the defendants, de-
 spite contrary instruction from the district court. The dis-
 trict court explained that Rule 4(e) does not permit
 personal service via mail and the Khans had not identified
 any state laws that would otherwise allow service by mail.
 Id. The district court further found that the Khans had
 failed to comply with the timeliness requirement of
 Rule 4(m). Id. at *3. In addition, the district court held
 that dismissal was warranted on the alternative grounds
 of improper venue under § 1400(b) and improper joinder
 under 35 U.S.C. § 299. Id.
     Next, the district court granted the non-Illinois-resi-
 dent defendants’ motion for sanctions based on the Khans’
 assertions regarding venue and service, which they had
 maintained despite repeated warnings and guidance from
 the court. Id. at *4–5. The district court recognized that
 the Khans were proceeding pro se and thus were “entitled
 to some leniency before being assessed sanctions for frivo-
 lous litigation.” Id. at *5 (quoting Thomas v. Foster,
 138 F. App’x 822, 823 (7th Cir. 2005)). But the district
 court explained that the Khans “not only acted in direct
 contravention to clear procedural rules, statutes, and gov-
 erning law, but continued to do so after being repeatedly
 warned at hearings by the Court, in written orders, and in
 correspondence with defense counsel.” Id. The district
 court thus found that it was “more than objectively reason-
 able to believe that the [Khans] should have known their
 positions on venue and service were groundless.” Id. Ac-
 cordingly, the district court ordered the Khans to pay at-
 torney fees associated with the defendants’ filing fees,
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 KHAN   v. HEMOSPHERE INC.                                  7



 motions to dismiss, and motion for sanctions in the amount
 of $95,966.90. Order at 1, Khan v. Hemosphere Inc.,
 No. 18-cv-05368 (N.D. Ill. July 15, 2019), ECF No. 175.
     For their part, the Khans moved for sanctions against
 the physician defendants and their attorneys for alleged vi-
 olations of Rule 11(b). The district court denied the motion
 on the ground that the Khans failed to provide proper no-
 tice to the defendants of their motion under Rule 11(c) or
 properly present their motion to the court as required by
 the court’s local rules. Id. at 3. The district court later
 denied the Khans’ motion for reconsideration of the court’s
 dismissal and sanctions orders.
      Merit Medical thereafter moved the district court to de-
 clare the case exceptional and to award attorney fees under
 § 285 in the amount of $292,693. The district court denied
 the motion. Minute Entry, Khan v. Hemosphere Inc.,
 No. 18-cv-05368 (N.D. Ill. Sept. 4, 2019), ECF No. 213. The
 district court found that the motion “cite[d] largely identi-
 cal conduct that was previously before the Court on the in-
 itial motion for sanctions,” and that “[t]he Court ha[d]
 already extensively considered this conduct in determining
 whether sanctions were appropriate and indeed ruled in
 Defendants[’] favor on this matter.” Id. The district court
 also found that, although the Khans had “litigated this case
 in an unorthodox manner,” none of their conduct following
 the court’s grant of sanctions could be considered “excep-
 tional.” Id.
     The Khans and Merit Medical appeal. We have juris-
 diction pursuant to 28 U.S.C. § 1295(a)(1).
                         DISCUSSION
     The Khans request that this court reverse the decisions
 of the district court dismissing their complaint, granting
 sanctions against the Khans, and denying the Khans’ mo-
 tion for sanctions. Merit Medical cross-appeals, seeking a
 reversal of the district court’s order denying its motion for
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 8                                   KHAN   v. HEMOSPHERE INC.



 attorney fees under § 285. For the reasons discussed be-
 low, we discern no abuse of discretion in the district court’s
 rulings and, accordingly, we affirm.
                               I
     We first consider the Khans’ challenge to the district
 court’s dismissal of their complaint for failure to effectuate
 proper and timely service on the defendants as required
 under Rule 4 and, alternatively, for improper venue.
                               A
      We apply the law of the regional circuit, here the Sev-
 enth Circuit, in resolving whether a district court properly
 dismissed a case for want of prosecution. See Bowling
 v. Hasbro, Inc., 403 F.3d 1373, 1375 (Fed. Cir. 2005). The
 Seventh Circuit reviews a district court’s dismissal for
 want of prosecution for an abuse of discretion. Williams
 v. Illinois, 737 F.3d 473, 476 (7th Cir. 2013); see also Car-
 denas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir.
 2011) (a district court’s dismissal based on untimely service
 of process is reviewed for an abuse of discretion).
      “A district court may not exercise personal jurisdiction
 over a defendant unless the defendant has been properly
 served with process, and the service requirement is not sat-
 isfied merely because the defendant is aware that he has
 been named in a lawsuit or has received a copy of the sum-
 mons and the complaint.” United States v. Ligas, 549 F.3d
 497, 500 (7th Cir. 2008) (citations omitted). Rule 4 speci-
 fies acceptable methods for service. For instance, a plain-
 tiff may request a waiver of service from a defendant by
 mailing a copy of the complaint, two copies of the waiver
 form, and a prepaid means for returning the form. Fed. R.
 Civ. P. 4(d). “But if the defendant does not waive service
 and if no federal statute otherwise supplies a method for
 serving process, then Rule 4(e)’s list of methods is exclu-
 sive.” Ligas, 549 F.3d at 501. Those methods consist of
 “following state law for serving a summons in an action
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 KHAN   v. HEMOSPHERE INC.                                      9



 brought in courts of general jurisdiction in the state where
 the district court is located or where service is made”; “de-
 livering a copy of the summons and of the complaint to the
 individual personally”; “leaving a copy of each at the indi-
 vidual’s dwelling or usual place of abode with someone of
 suitable age and discretion who resides there”; and “deliv-
 ering a copy of each to an agent authorized by appointment
 or by law to receive service of process.” Fed. R. Civ. P. 4(e).
 “Unless service is waived, proof of service must be made to
 the court.” Fed. R. Civ. P. 4(l)(1).
     Rule 4 also provides that “[i]f a defendant is not served
 within 90 days after the complaint is filed, the court—on
 motion or on its own after notice to the plaintiff—must dis-
 miss the action without prejudice against that defendant
 or order that service be made within a specified time.”
 Fed. R. Civ. P. 4(m). “[I]f the plaintiff shows good cause for
 the failure,” however, “the court must extend the time for
 service for an appropriate period.” Id. A district court has
 the discretion to dismiss a complaint with prejudice “for
 want of prosecution if the plaintiff’s delay in obtaining ser-
 vice is so long that it signifies failure to prosecute.” Wil-
 liams, 737 F.3d at 476 (citations omitted). A defendant
 may move to dismiss based on the court’s lack of personal
 jurisdiction, the insufficiency of process, or the insuffi-
 ciency of service of process. Fed. R. Civ. P. 12(b)(2), (4), (5).
     Here, the district court properly exercised its discretion
 in dismissing the Khans’ complaint due to their insufficient
 and untimely attempts at service. Although the Khans en-
 deavored to obtain waivers from all of the defendants, with
 very few exceptions, the defendants did not return signed
 waiver forms. Thus, the Khans were required to serve the
 non-waiving defendants by the other methods set forth un-
 der Rule 4(e). See Ligas, 549 F.3d at 501. As the district
 court correctly observed, the Khans’ mailing of the com-
 plaint and the summons does not constitute service under
 Rule 4(e).
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  10                                   KHAN   v. HEMOSPHERE INC.



       The Khans argue that each defendant had a duty under
  Rule 4 to sign the waiver form and return it within 30 days
  or otherwise show good cause for not doing so. Appellants’
  Br. 13, 15. They contend that “service is complete when
  the signed waiver form is returned by the defendant and
  filed by the plaintiff for entry into the District Court.” Id.
  at 13. In their view, the district court lacked jurisdiction
  to decide the motions to dismiss because the defendants did
  not return the waiver forms back to the Khans. Id. at 15–
  16.
      The Khans misinterpret the provisions of Rule 4.
  While Rule 4(d) obligates defendants “to avoid unnecessary
  expenses of serving the summons,” it does not require de-
  fendants to waive formal service. Fed. R. Civ. P. 4(d)(1).
  Nor did the defendants’ decisions to forgo waiving service
  in this case strip the district court of its authority to decide
  the motions to dismiss on the basis of insufficient service.
  The Khans cite subsection (e) of Illinois statute 735 ILCS
  5/2-201, in conjunction with Rule 4(e)(1), as permitting ser-
  vice by mail, but subsection (e) of Illinois statute 735 ILCS
  5/2-201 does not appear to exist. The Khans also cite sub-
  section (e) of Illinois statute 735 ILCS 5/2-202, but this sub-
  section concerns the housing authority police force’s service
  of process for eviction actions and is thus inapplicable to
  this civil action. The Illinois statute that governs service
  of individuals in civil actions is 735 ILCS 5/2-203, which
  does not allow service by mail. Absent proof under
  Rule 4(l) that proper service was made on any of the non-
  waiving defendants, the district court properly held that
  the Khans had failed to provide proper service.
       The district court also correctly concluded that the
  Khans failed to comply with Rule 4(m)’s timeliness require-
  ment. In the more than 250 days between the filing of the
  complaint and the district court’s dismissal decision, nearly
  all of the over 300 defendants had not been properly served.
  The district court did not abuse its discretion in determin-
  ing that the Khans did not show good cause to justify such
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  KHAN   v. HEMOSPHERE INC.                                   11



  “extreme delay”—nearly three-fold the amount of time al-
  lotted to complete service. Khan, 2019 WL 2137378, at *3.
      Accordingly, we conclude that the district court was
  well within its discretion to dismiss the complaint with
  prejudice for want of prosecution due to the Khans’ insuffi-
  cient and untimely service.
                                B
       Turning to the issue of venue, the governing statute
  provides that “[a]ny civil action for patent infringement
  may be brought in the judicial district where the defendant
  resides, or where the defendant has committed acts of in-
  fringement and has a regular and established place of busi-
  ness.” 28 U.S.C. § 1400(b). A “regular and established
  place of business” requires a “place of business” in the dis-
  trict, i.e., “a physical, geographical location in the district
  from which the business of the defendant is carried out.”
  In re Cray Inc., 871 F.3d 1355, 1362 (Fed. Cir. 2017). The
  place of business must be the defendant’s, “not solely a
  place of the defendant’s employee.” Id. at 1363. We review
  de novo the question of proper venue under § 1400(b).
  Westech Aerosol Corp. v. 3M Co., 927 F.3d 1378, 1381
  (Fed. Cir. 2019).
      The district court correctly concluded that venue was
  improper under § 1400(b). As to Merit Medical, CryoLife,
  and the three physicians dismissed earlier in the action,
  the district court found that the Khans had not contended
  that any of these defendants resided in the district. The
  district court also found that the Khans had failed to plau-
  sibly allege that any of them infringed the asserted claim
  in the district or had a “regular and established place of
  business” in the district. As to the remaining defendants,
  the district court found that the complaint and related fil-
  ings were “devoid of any facts establishing that the infring-
  ing acts occurred in” the district or that the defendants
  “reside in the district.” Khan, 2019 WL 2137378, at *3.
  The district court also found that the Khans instead
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  12                                  KHAN   v. HEMOSPHERE INC.



  “allege[d] that the acts of infringement took place in the
  states in which the Defendants reside,” and that “nearly all
  of the Defendants are not residents of Illinois and are in-
  stead scattered throughout the country in dozens of differ-
  ent states.” Id.
       These findings remain largely unchallenged on appeal.
  Indeed, the Khans concede that their complaint names
  “more than 300 defendants residing in 43 states and two
  manufacturers who are on opposite sides of the country.”
  Appellants’ Br. 17. The Khans also admit that “the venue
  for non-Illinois defendant physicians is improper here.”
  Id.; see also id. at 22 (“[T]he plaintiffs made it clear in our
  pleadings that the venue is improper for non-Illinois de-
  fendant physicians.”); id. at 11 (“The totality of the record
  shows that the plaintiffs have never said that the venue is
  proper for the 106 non-Illinois defendant physicians.”).
  The Khans instead focus their challenge on the district
  court’s findings that Merit Medical and CryoLife each lack
  a “regular and established place of business” in the district.
  For instance, they contend that these corporations have
  sales representatives in the district that promote the ac-
  cused HeRO® Graft shunt. Id. at 18. But the fact that cer-
  tain employees live or conduct business in the district does
  not establish proper venue over defendants in the district.
  See Cray, 871 F.3d at 1363.
      We are also unpersuaded by the Khans’ contention that
  venue in the district is proper because it is the most con-
  venient forum to all parties under 28 U.S.C. § 1404(a). Ap-
  pellants’ Br. 17. Section 1404(a) governs transfers of
  actions to other judicial districts for convenience; it does
  not set the standard for whether venue is proper. Sec-
  tion 1400(b) governs that issue, and the Khans have failed
  to convince us that the district court erred in determining
  that venue under that statute was improper.
     We have considered the Khans’ other arguments re-
  garding service and venue, but do not find them
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  KHAN   v. HEMOSPHERE INC.                                13



  persuasive. Accordingly, we conclude that the district
  court did not abuse its discretion in dismissing the action
  with prejudice.
                               II
       We next consider the Khans’ challenge to the district
  court’s decision granting the non-Illinois-resident defend-
  ants’ motion for Rule 11 sanctions. We apply the law of the
  regional circuit, here the Seventh Circuit, to review an
  award of Rule 11 sanctions. See Eon-Net LP v. Flagstar
  Bancorp, 653 F.3d 1314, 1328 (Fed. Cir. 2011) (citing
  Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396,
  1406–07 (Fed. Cir. 2004)). The Seventh Circuit reviews de-
  cisions regarding Rule 11 sanctions for an abuse of discre-
  tion. Bell v. Vacuforce, LLC, 908 F.3d 1075, 1079 (7th Cir.
  2018) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S.
  384, 405 (1990)).
       The district court properly exercised its discretion in
  sanctioning the Khans under Rule 11(b) for their frivolous
  arguments regarding venue and service of process. The
  district court found that the Khans had repeatedly as-
  serted throughout the litigation that venue was proper in
  the Northern District of Illinois. In support of this argu-
  ment, the Khans relied on this court’s decision in In re TC
  Heartland LLC, 821 F.3d 1338 (Fed. Cir. 2016), despite the
  fact that the Supreme Court had reversed that decision
  prior to the Khans’ lawsuit, see TC Heartland LLC v. Kraft
  Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017). The dis-
  trict court also noted that it had cited the Supreme Court’s
  TC Heartland decision both in its order granting Merit
  Medical’s and CryoLife’s motions to dismiss based on im-
  proper venue and in status hearings. Despite this guidance
  from the court, the Khans “again raised their baseless ar-
  gument in their Motion to Reconsider.” Khan, 2019 WL
  2137378, at *4. The district court further found that the
  Khans’ complaint “undercut[] any good faith basis for as-
  serting venue is proper in th[e] district,” since it alleged
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  14                                  KHAN   v. HEMOSPHERE INC.



  that the non-Illinois-resident defendants’ infringing acts
  occurred “at their addresses in their respective states.” Id.
  (quoting Complaint at 41, Khan v. Hemosphere Inc.,
  No. 18-cv-05368 (N.D. Ill. Aug. 7, 2018), ECF No. 1). Fi-
  nally, the district court found that the Khans had main-
  tained their baseless assertion that service by mail was
  sufficient under Rule 4, again despite contrary guidance
  from the court. Id. at *5.
       The Khans do not challenge any of these factual find-
  ings on appeal. Instead, they contend that sanctions are
  inappropriate      because    the     defendants     violated
  Rule 11(c)(2), which prohibits the filing of a sanctions mo-
  tion “if the challenged paper, claim, defense, contention, or
  denial is withdrawn or appropriately corrected within
  21 days after service or within another time the court sets.”
  Fed. R. Civ. P. 11(c)(2). Specifically, they argue that the
  defendants did not serve them with the sanctions motion
  more than 21 days prior to filing it with the district court.
  But the district court found the opposite—namely, that the
  defendants put the Khans “on notice of their intent to seek
  sanctions as early as September 24, 2018”—more than
  five months before they filed their sanctions motion in
  March 2019. See Khan, 2019 WL 2137378, at *5. The dis-
  trict court also found that the Khans were notified on sev-
  eral more occasions before the defendants moved for
  sanctions. Id. The Khans offer no response to the district
  court’s finding that the defendants’ “‘early and often’ ap-
  proach in corresponding with [the Khans] regarding their
  desire to pursue sanctions no doubt satisfies the 21-day re-
  quirement of Rule 11(c).” Id.; see also Matrix IV, Inc. v. Am.
  Nat’l Bank & Tr. Co., 649 F.3d 539, 552–53 (7th Cir. 2011)
  (concluding that “a letter informing the opposing party of
  the intent to seek sanctions and the basis for the imposition
  of sanctions” sent more than two years before the motion
  was filed was “sufficient for Rule 11 purposes” (citations
  omitted)).
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  KHAN   v. HEMOSPHERE INC.                                  15



      The Khans also argue that a sanctions award cannot
  be based on their assertions regarding service and venue
  because such assertions are “ancillary issues” that are “un-
  related to the merits of the claim.” Appellants’ Br. 24. The
  Khans cite Rule 41(b) of the Federal Rules of Civil Proce-
  dure and Moeck v. Pleasant Valley School District, 844 F.3d
  387 (3d Cir. 2016), to support their argument. Id. at 24–
  25. Rule 41(b) provides that an involuntary dismissal or
  other dismissal except “for lack of jurisdiction, improper
  venue, or failure to join a party under Rule 19 . . . operates
  as an adjudication on the merits,” Fed. R. Civ. P. 41(b), but
  this rule does not preclude sanctions for frivolous venue
  and service assertions. The Khans’ reliance on Moeck is
  similarly misplaced. In Moeck, the Third Circuit discerned
  no error in the district court’s observations that the defend-
  ants’ numerous sanctions motions were a “waste of judicial
  resources” and that discovery, motion practice, and trial
  were better vehicles than sanctions motions to determine
  the truth of a plaintiff’s allegations. 844 F.3d at 389–92
  & n.9. Nothing in Moeck suggests, however, that sanctions
  are precluded for frivolous venue and service assertions,
  even if those assertions are considered “ancillary” to the
  merits of a plaintiff’s infringement claims.
      We have considered the Khans’ other arguments, but
  do not find them persuasive. Accordingly, we conclude that
  the district court did not abuse its discretion in granting
  the defendants’ motion for sanctions.
                               III
      We next consider the Khans’ challenge to the district
  court’s denial of their cross-motion for Rule 11 sanctions
  against the physician defendants and their attorneys. In
  their motion, the Khans sought $250,000 in damages based
  on the defendants’ and their attorneys’ alleged violations of
  Rule 11(b), including their “inadequate pre-filing investi-
  gation” preceding their sanctions motion and “prose-
  cuti[on] [of] the case for [the] improper purpose of
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  16                                  KHAN   v. HEMOSPHERE INC.



  harass[ing]” the Khans and “for causing mental anguish.”
  Request for Sanctions, Khan v. Hemosphere Inc., No. 18-cv-
  05368 (N.D. Ill. June 13, 2019), ECF No. 155.
      We conclude that the district court did not abuse its
  discretion in denying the Khans’ cross-motion for sanc-
  tions. The district court denied the motion for failure to
  comply with the safe harbor provisions of Rule 11(c) and
  the requirement of the district court’s Local Rule 5.3(b) to
  accompany a motion with “a notice of presentment specify-
  ing the date and time on which, and judge before whom,
  the motion or objection is to be presented.” The Khans do
  not address either of these defects on appeal. Instead, they
  merely reiterate that the defendant physicians and their
  attorneys should be sanctioned for their assertions that the
  HeRO® Graft shunt does not infringe the asserted claim of
  the ’344 patent and for filing a motion for sanctions against
  the Khans. Under these circumstances, we conclude that
  the district court was well within its discretion to deny the
  Khans’ cross-motion for Rule 11 sanctions.
                               IV
       Lastly, we turn to Merit Medical’s cross-appeal from
  the district court’s decision denying its motion to declare
  the case exceptional and to award attorney fees in the
  amount of $292,693. “The court in exceptional cases may
  award reasonable attorney fees to the prevailing party.”
  35 U.S.C. § 285. “[A]n ‘exceptional case’ is simply one that
  stands out from others with respect to the substantive
  strength of a party’s litigating position (considering both
  the governing law and the facts of the case) or the unrea-
  sonable manner in which the case was litigated.” Octane
  Fitness, LLC v. Icon Health & Fitness, Inc., 572 U.S. 545,
  554 (2014). “District courts may determine whether a case
  is ‘exceptional’ in the case-by-case exercise of their discre-
  tion, considering the totality of the circumstances.” Id. We
  review a district court’s denial of a motion for attorney fees
  under § 285 for an abuse of discretion. Highmark Inc.
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  KHAN   v. HEMOSPHERE INC.                                  17



  v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 561, 564
  (2014).
      We conclude that the district court did not abuse its
  discretion in denying Merit Medical’s motion for attorney
  fees under § 285. The district court found that the conduct
  described in the motion was largely identical to the conduct
  already presented in the defendants’ earlier sanctions mo-
  tion and was already considered by the court in granting
  sanctions against the Khans. The district court also deter-
  mined that, although the Khans’ litigation strategy was
  “unorthodox,” their conduct following the district court’s
  grant of sanctions did not rise to the level of “exceptional.”
  The district court further found that the previous sanctions
  amount of $95,966.90 was appropriate and reasonable
  given the Khans’ conduct in the case, but that imposing a
  three-fold increase in those fees was not warranted. We
  are unpersuaded that the district court “based its ruling on
  an erroneous view of the law or on a clearly erroneous as-
  sessment of the evidence.” Highmark, 572 U.S. at 563 n.2
  (quoting Cooter & Gell, 496 U.S. at 405).
       Merit Medical cites Rothschild Connected Devices In-
  novations LLC v. Guardian Protection Services, Inc.,
  858 F.3d 1383 (Fed. Cir. 2017), to support its argument
  that the district court “improperly conflated” Rule 11 with
  § 285 rather than accounting for the totality of the circum-
  stances. Cross-Appellant’s Br. 80. In Rothschild, the dis-
  trict court denied a motion for fees under § 285 based on its
  finding that the patent owner’s “decision to voluntarily
  withdraw its complaint within [Rule 11’s] safe harbor pe-
  riod [wa]s the type of reasonable conduct [that] Rule 11 is
  designed to encourage” and, thus, awarding fees under
  § 285 would “‘contravene[] the aims of Rule 11[’s]’ safe-har-
  bor provision.” 858 F.3d at 1390 (latter three alterations
  in original) (quoting Rothschild Connected Devices Innova-
  tions, LLC v. Guardian Prot. Servs., Inc., No. 15-cv-1431,
  2016 WL 3883549, at *2 (E.D. Tex. July 18, 2016)). We
  held that the district court’s decision was contrary to the
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  18                                  KHAN   v. HEMOSPHERE INC.



  Supreme Court’s admonition that “[w]hether a party
  avoids or engages in sanctionable conduct under Rule 11(b)
  ‘is not the appropriate benchmark’” for an award of fees un-
  der § 285. Id. (quoting Octane Fitness, 572 U.S. at 555).
       By contrast, here, the district court considered the to-
  tality of the circumstances, including the Khans’ litigation
  approach and the substantial overlap between the com-
  plained-of conduct in Merit Medical’s motion and the ear-
  lier sanctions motion. Based on its assessment of the
  procedural history and parties’ briefing, the district court
  determined that the Khans’ conduct in this case—while
  sanctionable—was not so unreasonable so as to make this
  case one of the rare cases worthy of a three-fold increase in
  fees imposed against them. Octane Fitness gives district
  courts broad discretion in such exceptional-case determi-
  nations. We are not persuaded that the district court
  abused its discretion in determining that this case is not
  exceptional.
                         CONCLUSION
      For the foregoing reasons, we affirm the district court’s
  decisions dismissing the action with prejudice, granting
  the defendants’ motion for sanctions, denying the Khans’
  cross-motion for sanctions, and denying Merit Medical’s
  motion for attorney fees under § 285. Because we have af-
  firmed the district court’s dismissal and award of sanctions
  based on the issues of insufficient service of the complaint
  under Rule 4 and improper venue, we need not reach the
  district court’s determination of misjoinder.
                         AFFIRMED
                             COSTS
       No costs.
