Case: 20-120     Document: 28    Page: 1    Filed: 05/01/2020




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                 In re: FORTINET, INC.,
                         Petitioner
                  ______________________

                         2020-120
                  ______________________

    On Petition for Writ of Mandamus to the United States
District Court for the District of Delaware in No. 1:18-cv-
01018-CFC-MPT, Judge Colm F. Connolly.
                  ______________________

               ON PETITION AND MOTION
                  ______________________

     Before LOURIE, DYK, and REYNA, Circuit Judges.
DYK, Circuit Judge.
                        ORDER
    Fortinet, Inc. petitions for a writ of mandamus vacat-
ing the United States District Court for the District of Del-
aware’s order denying Fortinet’s motion to dismiss and
remanding for reconsideration. Fortinet also moves to stay
the underlying proceedings pending its petition to this
court for a writ of mandamus. British Telecommunications
plc and BT Americas, Inc. (collectively, “BT”) oppose the
petition and the motion. Fortinet replies.
Case: 20-120    Document: 28      Page: 2    Filed: 05/01/2020




2                                         IN RE: FORTINET, INC.




    BT filed this suit against Fortinet in the District of Del-
aware, asserting claims that Fortinet had infringed its pa-
tent by making, using, offering to sell, selling, and/or
importing in the United States various accused products.
Fortinet moved to dismiss the case under the doctrine of
forum non conveniens, invoking a prior agreement estab-
lishing a global commercial relationship between British
Telecom and Fortinet that included a forum selection
clause whereby the parties had agreed to “submit to the
exclusive jurisdiction of the English courts in relation to
contractual and/or non-contractual obligations.”
    The district court denied Fortinet’s motion. Relying on
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)
(“At the outset of any forum non conveniens inquiry, the
court must determine whether there exists an alternative
forum.”) and Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507
(1947), the district court concluded, over Fortinet’s objec-
tion, that it could consider the adequacy of the alternative
forum in its forum non conveniens analysis. In doing so,
the district court concluded that dismissal would not be in
the interest of justice here because there was “a real ques-
tion” about whether plaintiffs could bring in England their
infringement claims of United States patents.
    A writ of mandamus is a “drastic and extraordinary
remedy reserved for really extraordinary causes.” Cheney
v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380
(2004) (internal quotation marks and citation omitted). A
petitioner must satisfy three requirements: (1) the peti-
tioner must “have no other adequate means to attain the
relief” desired; (2) the petitioner must show that the “right
to issuance of the writ is clear and indisputable;” and (3)
the petitioner must convince the court that the writ is “ap-
propriate under the circumstances.” Id. at 380–81 (inter-
nal quotation marks and citations omitted).
   Because orders denying motions to dismiss for forum
non conveniens are normally reviewable after final
Case: 20-120     Document: 28     Page: 3    Filed: 05/01/2020




IN RE: FORTINET, INC.                                            3



judgment, see In re Orange, S.A., 818 F.3d 956, 963 (9th
Cir. 2016), courts generally limit review on mandamus to
making sure that the district court “took the question be-
fore it seriously, gave careful consideration to the relevant
factors that bear on a forum non conveniens motion, and
came to a reasoned conclusion,” In re Ford Motor Co., 344
F.3d 648, 652 (7th Cir. 2003).
     Outside the context of a forum selection clause, this
court has already addressed the importance in a forum non
conveniens analysis to consider the adequacy of a forum
with regard to claims of intellectual property infringement
that occurred in the United States. In Halo Creative & De-
sign Ltd. v. Comptoir Des Indes, Inc., 816 F.3d 1366, 1371
(Fed. Cir. 2016), this court made clear that “[t]erritoriality
is always of concern in intellectual property disputes” since
“[i]t cannot be assumed that a foreign court would adjudi-
cate an intellectual property dispute where the alleged in-
fringement occurred elsewhere[.]”
    We held in Halo that the moving party, here Fortinet,
bears the burden of persuasion in demonstrating the ade-
quacy of the alternative forum. Id. The district court con-
cluded that Fortinet had failed to make such a showing,
noting that it had only been able to cite cases in which Eng-
lish courts had construed claims of a United States patent
in the context of a licensing dispute and had failed to cite
any English case or statute that provides assurance that
an English court could or would assert jurisdiction over a
United States patent infringement action.
     Fortinet contends that the existence of the forum selec-
tion clause here changes the calculus. There is first the
question of whether the forum selection clause applies at
all here. BT notes that BT Americas did not sign the agree-
ment and separately raises legitimate questions concern-
ing whether the scope of the clause extends to the asserted
patent infringement claims. And even putting those issues
aside, there is the question of whether Fortinet has met the
Case: 20-120     Document: 28      Page: 4    Filed: 05/01/2020




4                                         IN RE: FORTINET, INC.




exacting standard for mandamus relief. Although it is true
that in Atlantic Marine Construction Co. v. United States
District Court for Western District of Texas, 571 U.S. 49, 63
(2013), the Supreme Court stated that “a valid forum-se-
lection clause should be given controlling weight in all but
the most exceptional cases” (internal quotation marks and
citation omitted), Atlantic Marine was a 28 U.S.C. §
1404(a) case and did not address the question of whether
courts are precluded from considering the availability of
the alternative forum in the course of conducting its forum
non conveniens doctrine analysis.
     Moreover, courts since Atlantic Marine have, at best,
expressed differing views on this issue. Compare Azima v.
RAK Inv. Auth., 926 F.3d 870, 875 (D.C. Cir. 2019) (stating
that “if we are dealing with an applicable, mandatory,
valid, and enforceable forum-selection clause, we need not
ask whether the location it identifies is available, ade-
quate, or best for the parties’ private interests”), with id. at
875 n.2 (acknowledging that “some courts have left open
the possibility that they will consider whether the prese-
lected forum meets these criteria”); and Collins v. Mary
Kay, Inc., 874 F.3d 176, 186 (3d Cir. 2017) (suggesting that
after Atlantic Marine a court in the Third Circuit should
still consider in its analysis “the availability of an adequate
alternative forum where defendants are amenable to pro-
cess and plaintiffs’ claims are cognizable”).
    We need not resolve this question in this case. Even
with some regional circuits calling into question the need
to assess the availability of the alternative forum in a fo-
rum non conveniens analysis when there exists an applica-
ble, mandatory, valid and enforceable forum-selection
clause, with other courts, including the regional circuit in
which this case arose, seemingly going the other way, it
simply is not indisputably clear that Fortinet has estab-
lished a right to dismissal under the doctrine of forum non
conveniens. Given the additional questions surrounding
Case: 20-120     Document: 28     Page: 5   Filed: 05/01/2020




IN RE: FORTINET, INC.                                           5



the applicability of the forum selection clause here, we
must conclude that mandamus relief is inappropriate.
    Accordingly,
    IT IS ORDERED THAT:
    (1) The petition is denied.
    (2) The motion to stay is denied as moot.
                                  FOR THE COURT

          May 1, 2020             /s/ Peter R. Marksteiner
            Date                  Peter R. Marksteiner
                                  Clerk of Court

 s29
