We've talked a lot about how the Jumara factors, which govern how courts in the Third Circuit exercise their discretion on motions to transfer, are pretty tough on plaintiffs. Patent cases seems to stick more often than not, but plaintiffs with other claims, such as false advertising, may not be so lucky.
Judge Andrews granted a motion to transfer in a false advertising case on Friday. Here's how the factors broke down:
Plaintiff's Choice of Forum: This always favors plaintiff, and …
Its going to be a short post tonight because I'm writing a brief and a Minnesota team looks like it may fail to disappoint me in the playoffs for the first time ever.
Thankfully today we got an argument about venue that I had never seen before. I mean, It's been 8 years since TC Heartland -- its really pretty nuts that you can still see something new.
The case was Institute for Environmental Health, Inc. v. National Beef Packing Company, LLC, C.A. No. 23-826-JS (D. Del. May 16, 2024). Defendant was moving to transfer, and before addressing the usual Jumara factors, the court addressed the threshold question of whether venue was proper in Delaware.
Defendant—and this is the weird part—argued that it did not reside in Delaware because, it was a Delaware LLC, rather than a corporation. The Court disagreed:
Defendant argues that as an LLC it is unincorporated, and thus under TC Heartland, LLC, it does not “reside” in Delaware because it was not “incorporated” in Delaware. However, Defendant was organized as an LLC under Delaware law and therefore for purposes of venue resides in Delaware. Further, other federal district courts have held that an LLC resides in the state in which it was organized . . . Accordingly, venue is proper in the District of Delaware.
Id. at 7-8 (internal citations omitted).
As near as I can tell this is the first time a party has made this argument in Delaware. Judging by the decision, I don't expect to see too many more, but I do appreciate the easy post.
...
Go Wolves!
Moving to transfer a case out of Delaware is tough. This is doubly true when Delaware is the Plaintiff's "Home Turf," in which case its choice of forum is entitled to "paramount consideration." See Intellectual Ventures I LLC v. Altera Corp, 842 F. Supp. 2d 744, 754 (D. Del. 2015).
We've previously covered the split in district on the question of whether Delaware is necessarily the home turf of every entity incorporated here, or if a plaintiff needs more than a P.O. box and a certificate on file with the Secretary of State for its choice of venue to warrant "paramount consideration."
As he noted in FG SRC LLC v. Xilinx, Inc., C.A. No. 20-601-LPS, D.I. 34 (D. Del. Feb. 10, 2021), Judge Stark "believe[s] that an entity's state of incorporation is part of its home turf" regardless of any other connections it may or may not have with the district. See id. at 6-7.
The interesting bit about the FG decision is the Judge Stark's analysis was unaffected by the fact that the Plaintiff had admittedly chosen to assert the same patents against another Delaware entity in a different district (W.D. Tex.) just one week prior. See id. n.3. Although defendant pointed out that this pretty strongly suggested that the plaintiffs interest in litigating this particular suit in Delaware was more a product of strategy than a commitment to litigating in its beloved state of incorporation, Judge Stark was unmoved and proceeded to deny the motion to transfer.
