A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: transfer

Globe
Adolfo Félix, Unsplash

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: …

Wilmington, <a href='#' class='abbreviation' data-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Wilmington, DE Andrew Russell, CC BY 2.0

In an opinion today, Judge Andrews laid out his updated thoughts on transfer motions, particularly in light of COVID-19 travel restrictions and the related difficulties.

Here are some interesting points re: his views:

  • In granting transfer, he focused on the fact that the Plaintiff's principal place of business was not Delaware
  • He held that convenience of counsel is irrelevant, because parties can choose their counsel.
  • As far as court congestion, he noted that "[o]ne other Delaware judge and I each individually had more old cases than the entire Western District [of Washington]," and that the Judicial Conference has recommended …

I'm not sure that these are actually Georgia peaches.
I'm not sure that these are actually Georgia peaches. Joanna Stołowicz, Unsplash

Judge Noreika granted a motion to transfer yesterday in a case against an Equifax entity, where 3 of the Third Circuit's Jumara factors favored transfer, and only one (plaintiff's choice of forum) weighed against.

My first thought was—Did the plaintiff really have only one factor in it's favor?

Judge Noreika usually credits the fact that the Defendant is a Delaware corporation, and I thought Equifax was one.

Turns out, so did plaintiff. The complaint lists the defendant as a Delaware corporation. But—as the Court notes—Equifax Information Services is actually a Georgia entity. Plaintiff messed up.

So the transfer makes sense. The plaintiff is Hawaiian, meaning …

Plane in turbulence
Turbulence, Joshua Hoehne, Unsplash

Judge Andrews recently dropped this intriguing paragraph modifying the balancing of the Jumara transfer factors in light of COVID-19:

Currently, the COVID-19 pandemic is ongoing. Hopefully, things will get better, but the pandemic has highlighted that there can be risks associated with travel. Some people who would not have been worried about travel before the pandemic are now reluctant to travel. I believe it is appropriate to give slightly greater weight to the possibility of less risk associated with less travel, which would favor the [transfer] venue.

The opinion is otherwise a bog-standard grant of transfer where both parties were incorporated in Delaware but had no other real connection. It's quite rare to see any …