Case: 19-1672    Document: 51     Page: 1   Filed: 03/13/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

      COMMUNICATIONS TEST DESIGN, INC.,
              Plaintiff-Appellant

                             v.

                     CONTEC, LLC,
                    Defendant-Appellee
                  ______________________

                        2019-1672
                  ______________________

    Appeal from the United States District Court for the
 Eastern District of Pennsylvania in No. 2:18-cv-04077-
 GJP, Judge Gerald J. Pappert.
                 ______________________

                 Decided: March 13, 2020
                 ______________________

     RICHARD WILLIAM MILLER, Ballard Spahr LLP, At-
 lanta, GA, argued for plaintiff-appellant. Also represented
 by DENNIS ALAN WHITE, JR.; LYNN E. RZONCA, Philadel-
 phia, PA.

     COBY SCOTT NIXON, Taylor English Duma LLP, At-
 lanta, GA, argued for defendant-appellee. Also repre-
 sented by KELLY MULLALLY, SETH KINCAID TRIMBLE.
                 ______________________
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 2               COMMUNICATIONS TEST DESIGN v. CONTEC, LLC




  Before O’MALLEY, MAYER, and WALLACH, Circuit Judges.
 O’MALLEY, Circuit Judge.
      Communications Test Design, Inc. (“CTDI”) filed suit
 in the United States District Court for the Eastern District
 of Pennsylvania, seeking declaratory judgment that its test
 systems do not infringe two of Contec, LLC’s patents (“the
 Pennsylvania action”). Six days later, Contec sued CTDI
 for patent infringement in the United States District Court
 for the Northern District of New York (“the New York ac-
 tion”). Contec moved to dismiss the Pennsylvania action,
 arguing that CTDI’s anticipatory filing was made in bad
 faith during active licensing discussions. The district court
 granted the motion, exercising its discretion to decline ju-
 risdiction over CTDI’s declaratory judgment action.
 Commc’ns Test Design, Inc. v. Contec LLC, 

, 360 (E.D. Pa. 2019). In doing so, the court found that
 equitable considerations warranted departure from the
 first-to-file rule. CTDI appeals the district court’s dismis-
 sal of the Pennsylvania action. Because we conclude that
 the district court did not abuse the broad discretion ac-
 corded to it—both under the Declaratory Judgment Act, 28
 U.S.C. § 2201(a) and pursuant to the first-to-file rule—we
 affirm.
                       I. BACKGROUND
                       A. The Parties
     CTDI is an engineering, repair, and logistics company
 with its principal place of business in West Chester, Penn-
 sylvania. Commc’ns Test 

. Since
 2007, CTDI has developed, manufactured, and been using
 its “Gen3” and “Gen5” test systems within the United
 States for testing set-top boxes and multimedia devices. 

systems, which form the basis of Contec’s in-
 fringement claims, were designed and developed at CTDI’s
 West Chester facility. Although based in Pennsylvania,
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 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                    3



 CTDI has over ninety facilities worldwide, including one in
 Glenville, New York.
     Contec “provides repair, test and reverse logistics for
 electronics hardware used in a broad range of markets.”
 

the owner by assignment of the two patents
 at issue in this case: (1) U.S. Patent No. 8,209,732 for an
 “Arrangement and Method for Managing Testing and Re-
 pair of Set-Top Boxes;” and (2) U.S. Patent No. 8,689,071
 for a “Multimedia Device Test System.” 

 described in the asserted patents were designed and devel-
 oped at Contec’s corporate headquarters in Schenectady,
 New York. 

the six inventors of the asserted
 patents reside in New York, while another left Contec in
 2014 and works in CTDI’s Glenville, New York facility. 

360 n.3.
                B. Pre-Suit Communications
     In September 2017, Contec sent a letter to CTDI to de-
 termine whether CTDI’s test systems infringed any claims
 of the asserted patents. Over the course of the following
 year, the parties exchanged numerous emails and letters.
 In June 2018, counsel for both parties met in person, and
 CTDI disclosed certain information about its test systems
 pursuant to a confidentiality agreement.
     In September 2018, Contec’s counsel sent a letter to
 CTDI stating that “the parties’ extrajudicial process for ob-
 taining information about CTDI’s systems, without the full
 discovery obligations that would be imposed during litiga-
 tion, has proved unsatisfactory.” 

Counsel ex-
 plained that Contec had a good faith basis to believe that
 CTDI infringes at least one claim of the asserted patents.
 The letter asked CTDI to indicate, by September 19, 2018,
 whether it was willing to “discuss potential terms for a pa-
 tent license agreement.” 

Contec warned
 that, if it did not receive such confirmation, it would sue for
 patent infringement. 

Contec attached to its let-
 ter a draft of its proposed complaint. 

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 4               COMMUNICATIONS TEST DESIGN v. CONTEC, LLC




     On September 19—Contec’s stated deadline—Jerry
 Parsons, CTDI’s Chairman and chief executive officer
 (CEO), spoke on the phone with Hari Pillai, Contec’s CEO,
 about a possible license for Contec’s patents. During that
 conversation, Pillai proposed initial terms, and the execu-
 tives agreed to talk again on September 24, when Parsons
 would make a counterproposal. 

discussion,
 Pillai emailed Parsons, confirming the follow-up call and
 indicating that he looked forward to the counterproposal.
 

same day, CTDI’s counsel sent an email to
 Contec’s counsel, confirming that “CTDI will consider po-
 tential terms as requested in your most recent letter.” 

that, “[d]espite our firm position on non-
 infringement and without admission, in an attempt to
 avoid an impasse, we remain willing to consider reasonable
 licensing terms and so, we encourage a continued conver-
 sation between the executives.” 

21—two days after accepting Contec’s
 request to discuss licensing terms—CTDI filed a declara-
 tory judgment action in Pennsylvania. 

af-
 ternoon, Parsons sent an email to Pillai, confirming that
 CTDI would put a licensing proposal together and accept-
 ing Pillai’s suggested time for their follow-up call on Sep-
 tember 24. 

no mention of the fact that
 CTDI had filed its declaratory judgment complaint.
      On September 24—the day the CEOs were scheduled
 to talk—CTDI’s counsel emailed Contec’s counsel a copy of
 the declaratory judgment complaint. Counsel stated that
 official service would be held for a period of time to allow
 further discussion between the executives. 1




     1  CTDI ultimately served its declaratory judgment
 complaint on October 15, 2018.
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 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                  5



     On September 27, 2018, Contec filed its complaint for
 patent infringement in the Northern District of New York.
 That case remains pending.
                   C. Procedural History
     As noted, CTDI filed the Pennsylvania action on Sep-
 tember 21, 2018. On November 13, 2018, Contec moved to
 dismiss, or in the alternative, transfer or stay, CTDI’s com-
 plaint. Contec argued that CTDI filed the Pennsylvania
 action “in bad faith during active licensing discussions,
 only after inducing Contec to refrain from filing its own
 complaint against CTDI in a different forum.” Def.’s Mot.
 to Dismiss, Commc’ns Test Design, Inc. v. Contec, LLC, No.
 2:18cv4077 (E.D. Pa. Nov. 13, 2018), ECF No. 5. Contec
 asked the court to decline to exercise jurisdiction over the
 declaratory judgment action and dismiss the complaint in
 favor of the New York action.
      On February 15, 2019, the district court granted Con-
 tec’s motion and dismissed CTDI’s complaint. At the out-
 set, the court noted that “[n]either party disputes that an
 actual controversy exists here.” Commc’ns Test 

. Both the Pennsylvania and New
 York actions involve the same parties, the same patents,
 the same allegedly infringing products, and the same issue:
 whether CTDI’s test systems infringe Contec’s patents.
 The court recognized that, between CTDI’s first-filed de-
 claratory judgment action and Contec’s subsequently filed
 patent infringement action, CTDI’s first-filed action is pre-
 ferred “unless considerations of judicial and litigant econ-
 omy, and the just and effective disposition of disputes,
 require otherwise.” 

(quoting Genentech, Inc. v.
 Eli Lilly & Co., 

, 937 (Fed. Cir. 1993), abro-
 gated on other grounds by Wilton v. Seven Falls Co., 

, 288 (1995)).
     Relying on the timing and content of the parties’ com-
 munications, the district court found that “CTDI filed suit
 in anticipation of Contec’s impending infringement suit.”
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 6               COMMUNICATIONS TEST DESIGN v. CONTEC, LLC




 

Although CTDI promised Contec “a desire for a
 non-judicial resolution and continued negotiations,” it sued
 Contec two days later, thereby “beat[ing] Contec to the
 courthouse.” 

found that, although CTDI “had
 every right, in its business and legal judgment, to break off
 negotiations and resort to litigation,” it was not permitted
 to “string Contec along just long enough to get the judicial
 drop and file this lawsuit in its own backyard.” 

 The court noted that CTDI’s communications before and
 after its filing reveal its “nefarious motive,” and ultimately
 determined that “CTDI’s conduct was inconsistent with the
 policy of promoting extrajudicial dispute resolution, not to
 mention sound judicial administration and the conserva-
 tion of judicial resources.” 

358.
      Recognizing that the anticipatory nature of CTDI’s suit
 is “merely one factor in the analysis” under the first-to-file
 rule, the district court explained that “[i]nterference with
 ongoing negotiations constitutes another ‘sound reason
 that would make it unjust’ to exercise jurisdiction over the
 declaratory judgment action.” 

(citation omitted).
 The court also considered the convenience of the parties
 and availability of witnesses and determined that, “on bal-
 ance the Northern District of New York is a more conven-
 ient forum to resolve the dispute between the parties.” 

Given these considerations, the district court dis-
 missed the Pennsylvania action in favor of Contec’s later-
 filed infringement action. 2



     2   After the district court dismissed the Pennsylvania
 action, the district court in the Northern District of New
 York issued a decision denying CTDI’s motion to dismiss
 that action. Contec, LLC v. Commc’ns Test Design, Inc.,
 No. 18-cv-1172, 

, at *3 (N.D.N.Y. Sept.
 27, 2019). The New York district court explained that it
 deferred to the Eastern District of Pennsylvania’s determi-
 nation under the first-to-file rule, and noted that, “were it
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 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                    7



     CTDI appeals. We have jurisdiction under 28 U.S.C.
 § 1295(a)(1).
                        II. DISCUSSION
      On appeal, CTDI argues that the district court abused
 its discretion when it dismissed CTDI’s first-filed com-
 plaint seeking declaratory judgment of non-infringement
 in favor of Contec’s later-filed patent infringement action.
 According to CTDI, the Pennsylvania action was “entitled
 to precedence” over the New York action because there was
 no “sound reason” to depart from the first-to-file rule and
 because the “center of gravity” of the alleged infringing ac-
 tivity is in Pennsylvania. Appellant Br. 12–13. CTDI asks
 this court to find an abuse of discretion, reverse the district
 court’s dismissal, and remand for further proceedings on
 the merits of the declaratory judgment action. In the alter-
 native, CTDI submits that we should remand for an evi-
 dentiary hearing so that the district court can make factual
 findings regarding CTDI’s alleged motive. We address
 each issue in turn.
    A. The District Court Did Not Abuse Its Discretion.
    The Declaratory Judgment Act provides, in relevant
 part, that: “In a case of actual controversy within its juris-
 diction . . . any court of the United States, upon the filing
 of an appropriate pleading, may declare the rights and
 other legal relations of any interested party seeking such
 declaration, whether or not further relief is or could be


 up to this Court to determine the appropriate forum, it
 would have come to the same conclusion.” 

In
 doing so, the New York district court remarked that it was
 “unable to see how an email from CTDI’s CEO suggesting
 that a proposal was on the way—and which was written
 the same day that CTDI filed the Pennsylvania Action—
 could be anything other than a delay tactic to ensure the
 Pennsylvania Action was filed first.” 

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 8                COMMUNICATIONS TEST DESIGN v. CONTEC, LLC




 sought.” 28 U.S.C. § 2201(a). Given the statute’s use of the
 word “may,” the Supreme Court has said that a district
 court has “unique and substantial discretion in deciding
 whether to declare the rights of litigants.” 

. The use of that discretion is not plenary, however,
 and “[t]here must be well-founded reasons for declining to
 entertain a declaratory judgment action.” Capo, Inc. v. Di-
 optics Med. Prods., 

, 1355 (Fed. Cir. 2004);
 see also 

(“When there is an ac-
 tual controversy and a declaratory judgment would settle
 the legal relations in dispute and afford relief from uncer-
 tainty or insecurity, in the usual circumstance the declara-
 tory action is not subject to dismissal.”). We review a
 district court decision declining jurisdiction over a declara-
 tory judgment for an abuse of discretion. 3 

–90.
     As long as the district court “acts in accordance with the
 purposes of the Declaratory Judgment Act and the princi-
 ples of sound judicial administration, [it] has broad discre-
 tion to refuse to entertain a declaratory judgment action.”
 

–14. We have stated that “the purpose
 of the Declaratory Judgment Act . . . in patent cases is to
 provide the allegedly infringing party relief from uncer-
 tainty and delay regarding its legal rights.” Goodyear Tire
 & Rubber Co. v. Releasomers, Inc., 

, 956 (Fed.
 Cir. 1987). We have also stated that the “question whether
 to accept or decline jurisdiction in an action for a declara-
 tion of patent rights in view of a later-filed suit for patent
 infringement impacts this court’s mandate to promote



     3    The Declaratory Judgment Act is not an independ-
 ent basis for jurisdiction. See, e.g., Skelly Oil Co. v. Phillips
 Petroleum Co., 

, 671–72 (1950); Cat Tech LLC
 v. TubeMaster, Inc., 

, 879 (Fed. Cir. 2008). The
 district court had jurisdiction over this action pursuant to
 28 U.S.C. §§ 1331 and 1338(a).
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 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                    9



 national uniformity in patent practice.” Elecs. for Imaging,
 Inc. v. Coyle, 

, 1345 (Fed. Cir. 2005). Because
 it is an issue that falls within our exclusive subject matter
 jurisdiction, “we do not defer to the procedural rules of
 other circuits.” Serco Servs. Co., L.P. v. Kelley Co., Inc., 

, 1038 (Fed. Cir. 1995).
     The district court dismissed CTDI’s declaratory judg-
 ment action so that Contec’s patent infringement action—
 filed six days later—could proceed in New York. In these
 circumstances, where the issue is whether a suit for decla-
 ration of patent rights should yield to a later-filed infringe-
 ment suit, the trial court’s discretion is guided by the first-
 to-file rule, “whereby the forum of the first-filed case is fa-
 vored.” 

. “The ‘first-to-file’ rule
 is a doctrine of federal comity, intended to avoid conflicting
 decisions and promote judicial efficiency, that generally fa-
 vors pursuing only the first-filed action when multiple law-
 suits involving the same claims are filed in different
 jurisdictions.” Merial Ltd. v. Cipla Ltd., 

,
 1299 (Fed. Cir. 2012) (citing 

–
 38). The filing date of an action derives from the filing of
 the complaint. 

R. Civ. P. 3). Under the
 first-to-file rule, a district court may choose to stay, trans-
 fer, or dismiss a later-filed duplicative action. 

rule is that the first-filed action is pre-
 ferred, even if it is declaratory, “unless considerations of
 judicial and litigant economy, and the just and effective
 disposition of disputes, require otherwise.” 

. “[T]rial courts have discretion to make exceptions
 to this general rule in the interest of justice or expediency,”
 and we have recognized that such “exceptions are not rare.”
 Micron Tech., Inc. v. Mosaid Techs., Inc., 

, 904
 (Fed. Cir. 2008) (citing 

). For
 example, a district court may consider “a party’s intention
 to preempt another’s infringement suit when ruling on the
 dismissal of a declaratory action, but that consideration is
 merely one factor in the analysis.” 

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 10              COMMUNICATIONS TEST DESIGN v. CONTEC, 

). “Other factors include the convenience
 and availability of witnesses, the absence of jurisdiction
 over all necessary or desirable parties, and the possibility
 of consolidation with related litigation.” 

     When one of two competing suits in a first-to-file analy-
 sis is a declaratory judgment action, district courts enjoy a
 “double dose” of discretion: discretion to decline to exercise
 jurisdiction over a declaratory judgment action and discre-
 tion when considering and applying the first-to-file rule
 and its equitable exceptions. See Kerotest Mfg. Co. v. C-O-
 Two Fire Equip. Co., 

, 183–84 (1952) (noting
 that, in questions of priority between similar proceedings,
 “an ample degree of discretion, appropriate for disciplined
 and experienced judges, must be left to the lower courts”).
 Although district courts can, in the exercise of that discre-
 tion, dispense with the first-to-file rule, there must “be
 sound reason that would make it unjust or inefficient to
 continue the first-filed action.” 

.
 With this framework in mind, we turn to the district court’s
 analysis.
      Here, the district court carefully considered the record
 of the parties’ dispute, up to and including the competing
 filings, and concluded that several factors warranted de-
 parture from the first-to-file rule. Specifically, the court
 found that: (1) CTDI filed its declaratory judgment com-
 plaint in anticipation of Contec’s patent infringement com-
 plaint; (2) CTDI’s suit interfered with ongoing negotiations
 between the parties and did not serve the objectives of the
 Declaratory Judgment Act; and (3) on balance, the North-
 ern District of New York is a more convenient forum. As
 explained below, we find no abuse of discretion in the dis-
 trict court’s analysis.
      At the outset, the record is clear that CTDI’s filing was
 anticipatory. It is undisputed that, after the parties’ extra-
 judicial discussions proved unsatisfactory to Contec, Con-
 tec sent CTDI a draft complaint and told CTDI that it
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 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                    11



 would file suit if CTDI did not confirm by September 18,
 2018, that it was willing to discuss the terms of a potential
 license. Commc’ns Test 

.
 When that deadline arrived, CTDI indicated to Contec—on
 the phone and by letter—that it was willing to engage in
 licensing discussions. But two days later, CTDI filed its
 declaratory judgment action in Pennsylvania. Given these
 facts, the district court concluded that “CTDI filed suit in
 anticipation of Contec’s impending infringement suit.” 

CTDI does not take issue with the district
 court’s characterization of the Pennsylvania action as an-
 ticipatory. 4 Instead, it focuses on the district court’s state-
 ment that CTDI’s “communications, both immediately
 before and after CTDI’s filing, . . . reveal its ‘nefarious mo-
 tive’ to anticipate Contec’s impending suit and interfere
 with negotiations that Contec reasonably believed CTDI
 was conducting in good faith.” Commc’ns Test 

(quoting Sony Elecs., Inc. v. Guardian
 Media Techs., Ltd., 

, 1286 (Fed. Cir. 2007)).
 CTDI claims that the district court’s dismissal was “largely
 if not entirely based” on its “nefarious motive”



     4    Although CTDI attempts to challenge the district
 court’s characterization of its complaint as anticipatory for
 the first time in its reply brief, counsel for CTDI conceded
 at oral argument that it failed to raise this argument in the
 opening brief.      Oral Arg. at 7:07–18, available at
 http://oralarguments.cafc.uscourts.gov/default.aspx?fl=
 2019-1672.mp3. It is well established that an issue not
 raised by an appellant in its opening brief is waived. Bec-
 ton Dickinson & Co. v. C.R. Bard, Inc., 

, 800
 (Fed. Cir. 1990); see also Amhil Enters. Ltd. v. Wawa, Inc.,
 

, 1563 (Fed. Cir. 1996) (“A reply brief, which
 should ‘reply to the brief of the appellee,’ see Fed. R. App.
 P. 28(c), is not the appropriate place to raise, for the first
 time, an issue for appellate review.”).
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 12              COMMUNICATIONS TEST DESIGN v. CONTEC, LLC




 determination, and that such a determination “was an
 abuse of discretion.” Appellant Br. 18. We disagree.
     Although the court remarked that CTDI’s pre-suit com-
 munications revealed a “nefarious motive” to anticipate
 and interfere with negotiations, its decision to dismiss was
 not, as CTDI suggests, based “largely if not entirely” on
 that statement. Instead, the court analyzed the parties’
 pre-filing actions and communications and found that
 CTDI filed suit in anticipation of Contec’s impending in-
 fringement suit. Commc’ns Test 

.     The court explained that, “[a]rmed with the
 knowledge that Contec intended to sue if the parties did
 not enter into a patent license, CTDI continued the pre-
 tense of good faith negotiations.” 

stated
 deadline arrived, CTDI reassured Contec that it was will-
 ing to discuss non-judicial resolution and that litigation
 might be avoidable. Indeed, CTDI expressly agreed to have
 further licensing discussions the following week, thereby
 ensuring that Contec would refrain from filing its com-
 plaint. At the same time, however, CTDI was preparing its
 declaratory judgment complaint.
     CTDI argues that, as of September 19, 2018, it was ap-
 parent to Parsons “that a licensing agreement would prob-
 ably not be reached between Contec and CTDI.” Appellant
 Br. 19. As the district court found, however, Parsons’ ap-
 parent belief was never communicated to Contec.
 Commc’ns Test 

. In other
 words, even if Parsons believed non-judicial resolution was
 unlikely, the undisputed, objective evidence showed that
 CTDI continued to engage in and encourage negotiations.
 The district court found that “CTDI had every right, in its
 business and legal judgment, to break off negotiations and
 resort to litigation.” 

did not have the right
 to “string Contec along just long enough to get the judicial
 drop and file this lawsuit in its own backyard.” 

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 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                   13



      On this record, regardless of CTDI’s motive or intent,
 its pre-suit communications and conduct support the dis-
 trict court’s conclusion that the declaratory judgment ac-
 tion was filed in anticipation of Contec’s infringement suit.
 As such, we find no abuse of discretion in the district court’s
 characterization of CTDI’s complaint as anticipatory.
     Recognizing that the anticipatory nature of CTDI’s de-
 claratory action was “merely one factor in the analysis,” the
 district court also found that CTDI’s “[i]nterference with
 ongoing negotiations” provided “another ‘sound reason that
 would make it unjust’ to exercise jurisdiction over the de-
 claratory judgment action.” Commc’ns Test Design, 367 F.
 Supp. 3d at 358 (quoting 

). As
 we held in EMC, district courts “may take into account the
 pendency of serious negotiations to sell or license a patent
 in determining to exercise jurisdiction over a declaratory
 judgment action.” 

. We reasoned that,
 when there are ongoing negotiations, a district court may
 find that “the need for judicial relief is not as compelling as
 in cases in which there is no real prospect of a non-judicial
 resolution of the dispute.” 

for example, the accused infringer filed a de-
 claratory judgment action while it was in active negotia-
 tions with the patentee, and told the patentee that its filing
 was “merely a defensive step” and that it wanted to con-
 tinue discussions between the parties. 

On ap-
 peal, we affirmed the district court’s finding that the
 declaratory judgment complaint was “a tactical measure
 filed in order to improve [the accused infringer’s] posture
 in the ongoing negotiations—not a purpose that the Declar-
 atory Judgment Act was designed to serve.” 

argues that it filed the Pennsylvania ac-
 tion, not as a “tactical measure” to improve its “bargaining
 position,” but rather “to obtain a resolution that nearly a
 year of discussions had failed to achieve.” Appellant Br.
 23. It submits that, “unlike EMC’s complaint, CTDI’s
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 14              COMMUNICATIONS TEST DESIGN v. CONTEC, LLC




 complaint was filed for a purpose that the Declaratory
 Judgment Act was designed to serve—to provide CTDI
 with relief from uncertainty and delay regarding its legal
 rights.” 

     As the district court explained, the undisputed evi-
 dence demonstrates that license negotiations were ongoing
 when CTDI filed suit. Given these facts, the district court
 found that “CTDI took advantage of the fact that Contec
 deferred filing its complaint based on Contec’s reasonable
 belief that licensing discussions were taking place in ear-
 nest, with the obvious hope that litigation would not be nec-
 essary.” Commc’ns Test 

.
 The court concluded that CTDI’s conduct was “inconsistent
 with the policy promoting extrajudicial dispute resolution,
 not to mention sound judicial administration and the con-
 servation of judicial resources.” 

The district
 court was within its discretion in reaching this conclusion. 5
     Finally, CTDI argues that the district court erred in
 finding that, “on balance the Northern District of New York
 is a more convenient forum to resolve the dispute between
 the parties.” Appellant Br. 27 (quoting Commc’ns Test De-
 

). On this point, the district
 court considered that CTDI is headquartered in West Ches-
 ter, Pennsylvania, and that many of the witnesses with tes-
 timony relevant to the accused test systems are located in
 West Chester. Commc’ns Test 

. But the district court also considered that CTDI has
 over ninety facilities worldwide, including in Glenville,



      5  Although CTDI argues that the district court erred
 in focusing on the parties’ dealings after September 12,
 2018, and not on their communications over the course of
 the prior year, the record is clear that the parties did not
 begin to discuss a potential license until September 19,
 2018.
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 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                 15



 New York, where the accused test systems have been used.
 

Contec, the district court considered that: (1) its
 corporate headquarters are in New York; (2) it has no wit-
 nesses, physical facilities or place of business in Pennsyl-
 vania; (3) Contec’s employee files for its current and former
 employees, its email server and its record databases are
 maintained in its New York facility; (4) three of the six in-
 ventors of the patents at issue are current residents of New
 York; and (5) five of the inventors, “who would serve as key
 witnesses,” are beyond the subpoena power of the district
 court. 

the court found that these factors
 favored Contec’s later-filed New York action. 

 60.
     On appeal, CTDI does not take issue with the district
 court’s fact findings relevant to the convenience factors.
 Oral Arg. at 10:05–31 (“We don’t dispute the findings, Your
 Honor, but [we] do dispute the conclusion that they demon-
 strate that the Northern District of New York is in fact a
 more convenient forum overall.”). Instead, it argues that,
 on balance, the “center of gravity” of the alleged infringing
 activity is in the Eastern District of Pennsylvania. Appel-
 lant Br. 28. We find no error in the district court’s balanc-
 ing of the convenience factors, which is committed to the
 court’s sound discretion. These factors, coupled with the
 district court’s findings that CTDI’s complaint interfered
 with ongoing negotiations and was filed in anticipation of
 Contec’s infringement suit, support the district court’s de-
 cision to depart from the first-to-file rule and dismiss
 CTDI’s complaint.
                B. Remand Is Not Necessary.
     Although CTDI maintains that this court should re-
 verse the district court’s dismissal and remand for further
 proceedings on the merits of the declaratory judgment ac-
 tion, it asks, in the alternative, that we remand for an evi-
 dentiary hearing because “the district court made factual
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 16              COMMUNICATIONS TEST DESIGN v. CONTEC, LLC




 findings regarding CTDI’s ‘motive’ necessary to its deci-
 sion.” Appellant Br. 34.
     The procedure employed by the district court to make
 jurisdictional determinations is a “procedural question not
 unique to patent law,” and thus is governed by the law of
 the regional circuit—here, the Third Circuit. Microsoft
 Corp. v. GeoTag, Inc., 

, 1310 (Fed. Cir. 2016).
 We review the district court’s choice of procedure for an
 abuse of discretion. See Tanzymore v. Bethlehem Steel
 Corp., 

, 1323 (3d Cir. 1972). For the reasons
 explained below, we find no such abuse of discretion. Ac-
 cordingly, remand is not warranted.
      First, in support of its procedural objection, CTDI ar-
 gues that Contec’s motion to dismiss was “akin to a factual
 attack on subject matter jurisdiction” and relies on proce-
 dures district courts employ when reviewing factual chal-
 lenges to subject matter jurisdiction in the Rule 12(b)(1)
 context. Appellant Br. 35. But as CTDI concedes, “whether
 the district court had subject matter jurisdiction was not at
 issue.” 

Importantly, Contec’s motion to dismiss
 was not a Rule 12(b)(1) motion, and did not challenge the
 district court’s subject matter jurisdiction. Instead, Contec
 moved to dismiss CTDI’s complaint pursuant to the district
 court’s discretion under the Declaratory Judgment Act,
 which does not implicate the court’s subject matter juris-
 diction. See Countrywide Home Loans, Inc. v. Mortg. Guar.
 Ins. Corp., 

, 853 (9th Cir. 2011) (explaining
 that the Declaratory Judgment Act (“DJA”) “does not con-
 fer jurisdiction, and therefore also does not afford the op-
 portunity to decline it. The DJA gives district courts the
 discretion to decline to exercise the conferred remedial
 power, but in no way modifies the district court’s jurisdic-
 tion, which must properly exist independent of the DJA.”
 (internal citation omitted)). Given this posture, the proce-
 dures CTDI attempts to invoke—which provide for a hear-
 ing if there is a dispute of material fact relevant to a
 jurisdictional issue—are inapplicable. CTDI cites no
Case: 19-1672    Document: 51      Page: 17    Filed: 03/13/2020




 COMMUNICATIONS TEST DESIGN v. CONTEC, LLC                  17



 authority requiring a district court to hold an evidentiary
 hearing when deciding whether it should, in its discretion,
 exercise jurisdiction over a declaratory judgment action.
      Second, it is well-established that a “court can evaluate
 its jurisdiction without an evidentiary hearing ‘so long as
 the court has afforded [the parties] notice and a fair oppor-
 tunity to be heard.’” McCann v. George W. Newman Irrev-
 ocable Trust, 

, 290 (3d Cir. 2006) (quoting
 

–24). “A key consideration in
 determining whether a hearing is required is whether ei-
 ther party requested one.” 

parties had ample
 opportunity to be heard through declarations and briefs.
 Neither party requested oral argument or an evidentiary
 hearing. As such, the district court did not err in dismiss-
 ing CTDI’s complaint without a hearing.
      Finally, where there are no material facts in dispute, a
 hearing is not required. See 

. Ac-
 cording to CTDI, in finding that it acted with a “nefarious
 motive,” the district court made certain factual and credi-
 bility determinations that should have only been made af-
 ter a hearing. Appellant Br. 34. But the district court’s
 statement that CTDI acted with a “nefarious motive” was
 not necessary to its decision. The district court found that
 CTDI’s filing was anticipatory, disruptive to ongoing nego-
 tiations, and inconsistent with the purpose of the Declara-
 tory Judgment Act. The objective evidence in the record
 supports these findings. As such, remand for a hearing is
 not warranted.
                       III. CONCLUSION
      We have considered CTDI’s remaining arguments and
 find them unpersuasive. Because the district court acted
 within its discretion in declining to exercise jurisdiction
 over CTDI’s declaratory judgment action, we affirm the dis-
 trict court’s dismissal.
                         AFFIRMED