A Blog About Intellectual Property Litigation and the District of Delaware

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The short answer is: it depends on the judge.

These days, most Delaware patent plaintiffs are incorporated in Delaware but not located here. Different District of Delaware judges have gone different ways on the question of whether a plaintiff's location actually matters when considering whether to transfer a case out of Delaware.

Transfer motions are governed by the twelve "Jumara factors," and plaintiff's choice of forum gets "paramount" weight except—some judges have held—when the plaintiff is not actually located in Delaware.

Judge Connolly today answered this question with a resounding "no," holding that the location of plaintiff's principal place of business does not matter to whether it's choice of forum gets paramount weight:

In Shutte, the Third Circuit held that "[i]t is black letter law that a plaintiffs choice of a proper forum is a paramount consideration in any determination of a transfer request" brought pursuant to§ 1404(a), and that this choice "should not be lightly disturbed." . . . The parties have not cited and I am not aware of any Third Circuit or United States Supreme Court case that overruled Shutte. Jumara cited Shutte favorably and reiterated Shutte's admonition that "the plaintiffs choice of venue should not be lightly disturbed." . . . Thus, binding Third Circuit law compels me to treat [plaintiff]' s forum choice as " a paramount consideration" in the § 1404(a) balancing analysis.

He flatly rejected the idea—often cited by some other judges here—that plaintiff's choice of forum gets less weight if the plaintiff is not located here:

[Defendant] cites in support of its position certain opinions issued by district court judges in the Third Circuit that appear to assign less weight to a plaintiffs forum choice when the forum is not the plaintiffs " home turf"—that is, if the plaintiff has limited or no facilities, operations, or employees in the forum. I am not, however, persuaded that [plaintiff]'s choice should be discounted or minimized because it has no physical connections with Delaware.

He also pointed out that plaintiff's location is already accounted for by numerous other transfer factors, implying that a decision to give it less weight is essentially double counting.

He denied transfer.

How The Judges Have Handled This Factor Recently

Looking at their most recent opinions, four out of seven District of Delaware judges who have ruled on transfer motions have given full weight to plaintiff's choice of forum, regardless of the plaintiffs' location. These include judges Stark, Connolly, Noreika, and Burke.

Three of the seven have given only reduced weight to that choice, including Judges Andrews, Thynge, and Fallon. I'm not sure that Judge Hall has yet ruled on a transfer motion.

Why This Matters

As I've said before, the Jumara analysis can sometimes be tough for plaintiffs.

Plaintiffs typically get two factors in their favor (choice of forum and public policy considerations from a defendant's incorporation in DE), and defendants likewise often end up with two factors in their favor (such as defendant's choice of forum and practical considerations).

The factors have to "strongly" favor transfer, so plaintiffs still tend to be okay with a score of about 2v2.

But it's often not hard for defendants to pick up another factor or two in their favor, such as COVID-19 concerns or court congestion, and at that point transfer becomes more likely, depending on the facts of the case. Thus, any change in the analysis affects the number of cases that stay in Delaware.

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